Larry Donnell Boswell, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: December 14, 2015
• Docket: 03-15-00540-CR
• Status: Published

Opinion

ACCEPTED 03-15-00540-CR 8225614 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/14/2015 2:45:26 PM JEFFREY D. KYLE CLERK THE THIRD IN THE IN COURT OF THIRD COURT OF APPEALS APPEALS AT AUSTIN, AT TEXAS AUSTIN, TEXAS FILED IN LARRY DONNELL LARRY DONNELL BOSWELL, BOSWELL, JR.§ 3rd COURT OF APPEALS AUSTIN, TEXAS Appellant §§ 12/14/2015 2:45:26 PM §§ CAUSE NO. 03-15-00540-CR CAUSE NO. 03—15—00540-CR JEFFREY D. KYLE V. §§ TRIAL COURT NUMBER TRIAL COURT NUMBER Clerk 72,904 §§ THE STATE THE OF TEXAS STATE OF TEXAS §§ Appellee §§

OF APPELLANT BRIEF OF BRIEF APPELLANT

Appealed from the 27 Appealed from 27"‘ th Texas Judicial District Court, Bell County, Texas John Gauntt, presiding Hon. John Hon.

COPELAND LAW COPELAND LAW FIRM FIRM Box 399 P.O. Box Cedar Park, Texas Cedar Texas 78613 78613 512-215-8114 Tel/Fax 512-215-8114

Copeland Erika Copeland Erika Bar No. 16075250 State Bar 16075250 Attorney for Appellant

HEREBY REQUESTS APPELLANT HEREBY APPELLANT REQUESTS ORAL ARGUMENT ORAL ARGUMENT TABLE OF TABLE CONTENTS OF CONTENTS Page Page

Table of Contents Table i-vii

Index of Authorities Index viii-xii

I-1 . and Counsel 1. Identity of Parties and Counsel 1

2. Statement Case Statement of the Case 3

Background 3. Background 3

Regarding Oral Statement Regarding 4. Statement Argument Oral Argument 8

5. Issues Presented 9

A. One Issue One The trial court erred in admitting evidence The of prior bad acts acts over defense counsel‘s counsel’s Texas Rules of Evidence objections under Texas Evidence 401, 402, 403 andand 404(b). Specifically, counsel 404(b). Specifically, was affiliated objected to testimony that Boswell was with any criminal street gang.

B. Two Issue Two The trial court abused its discretion by The by denying Boswell‘s Boswell’s motion for new trial trial based on a Brady when the prosecution failed to Brady violation when disclose a witness‘ history of witness’ of reprimands while serving as a police officer.

C. Three Issue Three The trial court abused its discretion by The by denying Boswell‘s Boswell’s motion for new trial trial based on a Brady when the prosecution failed to Brady violation when impeachment and bias evidence disclose impeachment concerning a State‘s State’s witness that that included evidence of a history of of reprimands while the witness served as a police officer. officer.

B. Summary of the Arguments Summary Arguments 11 i TABLE OF TABLE OF CONTENTS, CONTENTS, continued Page Page

One-Restated 7. Issue One-Restated 11

The trial court erred in admitting evidence The of of prior bad acts acts over defense counsel‘s counsel’s objections Texas Rules of Evidence under Texas Evidence 401, 402, 403 and 403 and 404(b). Specifically, counsel objected 404(b). Specifically, to testimony that Boswell was was affiliated with any criminal street gang.

(A) (A) Statement of Pertinent Evidence 11

(B) Law (B) Applicable Law 13

(1) AtAt trial, all relevant evidence is admissible unless excepted by by the Constitution, statute or other rules.

(2) Evidence of other crimes wrongs, or acts is not admissible to prove the character of a person in order to show of show conformity with the character.

may be excluded if (3) Relevant evidence may its probative value is substantially outweighed byby a danger of unfair prejudice.

(C) Review (C) Standard of Review 15

(1) AA trial trial court‘s court’s ruling is is reviewed for discretion. an abuse of discretion.

(2) AA trial trial court‘s court’s ruling will be upheld if if within the zone of reasonable disagreement. disagreement.

2 TABLE OF CONTENTS, TABLE OF CONTENTS, continued Page Page

(D) Argument (D) Argument 15

(1) Evidence of Boswell‘s Boswell’s gang was not relevant. membership was membership

Gang affiliation (a) Gang affiliation evidence had no tendency to makemake probable the consequence. existence of any fact of consequence.

Gang (b) Gang affiliation affiliation evidence where there is no other relevant only where reason for the defendant to have acted commit the crime. as he did to commit

Even if (2) Even Rule 403 the if relevant, under Rule was so prejudicial as to outweigh evidence was any probative value of the evidence.

affiliation (a) Evidence of gang affiliation was a ―distraction‖ to “distraction” to the jury. jury.

(b) The wasnot The jury was not equipped to of the evaluate the probative force of testimony.

(E) (E) Harm Harm 18

Where error occurs in admitting (1) Where evidence of gang affiliation, affiliation, reversal is required unless it it is determined that the error did not affect Boswell‘s Boswell’s substantial rights. rights.

(a) Substantial rights are not affected if, if, after examination of the record as a whole, a reviewing court has a fair assurance that the error did influence the jury, not influence had but a jury, or had slight effect.

iii TABLE OF CONTENTS, TABLE OF CONTENTS, continued Page Page

(b) A A review here indicates the evidence contributed to to Boswell‘s Boswell’s guilty verdict.

(1) TheThe State was was the source when itit introduced of the error when of irrelevant evidence of character conformity.

The State emphasized (2) The Boswell‘s Boswell’s gang affiliation affiliation in closing arguments.

(3) Every witness for the State spoke to or about Boswell‘s Boswell’s gang affiliation.

(4) The State‘s State’s “gang ―gang expert‖ expert” spent a great deal of time on Boswell‘s Boswell’s role with a criminal street gang.

(5) In dramatic fashion was before the jury, Boswell was ordered to partially disrobe to show what show what were described as when the same gang tattoos when same was available in evidence was photographs. photographs.

(2) Presentation of the offending was calculated to prejudice the evidence was jury, and as a result, the evidence likely jury, affected Boswell‘s Boswell’s substantial rights.

4 TABLE OF TABLE OF CONTENTS, CONTENTS, continued Page Page

Two-Restated 7. Issue Two-Restated 20

The trial court abused its discretion by The by denying Boswell‘s motion for new trial Boswell’s trial based on a Brady Violation when Brady violation when the prosecution failed to disclose a witness‘ witness’ history of reprimands while serving as a police officer.

8. Issue Three-Restated 21

The trial court abused its discretion by The by denying Boswell‘s motion for new trial Boswell’s trial based on a Brady when the prosecution failed to Brady violation when impeachment and bias evidence disclose impeachment concerning a State‘s State’s witness that that included evidence of a history of reprimands while the witness served as a police officer. officer.

(A) (A) Statement of Pertinent Evidence

(B) Review — of Review (B) Standard of New Trial – New

(1) AA reviewing court reviews a trial court‘s court’s ruling on a motion for new trial for discretion. an abuse of discretion. (2) Trial Court would would not abuse its discretion in granting new new trial if the defendant articulated a valid claim, produced evidence supporting the claim, showed prejudice to his substantial and showed rights.

(C) Law —– Brady (C) Applicable Law Brady Violation

Due process requires prosecutorial (1) Due of information material to guilt disclosure of or innocence that is favorable to the defendant.

5 TABLE OF CONTENTS, TABLE OF CONTENTS, continued Page Page

(2) AA Brady when the Brady violation occurs when State suppresses, even inadvertently, evidence favorable to the defendant.

The State has a duty to reveal Brady (3) The Brady material to the defense whether or not the information. defense requested the information.

(D) Argument (D) Argument

(1) In Boswell‘s Boswell’s post-conviction hearing, the authenticity of the records containing impeachment/bias evidence was was acknowledged and the records were not furnished to the defense.

The documents indicated a (a) The basis for bias on the witness‘ part witness’ part when because his testimony at trial, when would added to his curriculum vitae, would promote his efforts to land a job with enforcement. law enforcement.

The failure to disclose the records was (2) The was ―material‖ (i.e., “material” (i.e., prejudicial to Boswell) when when viewed in light of other evidence presented at trial.

(a) The only evidence of of Boswell‘s Boswell’s involvement in the robbery presented came from at trial came from accomplices whowho had a motive to testify favorable each had for the State.

The undisclosed records would (b) The would have undermined the testimony of the one witness who who bolstered the testimony of that of of the various Various witnesses. accomplice witnesses.

6 TABLE OF CONTENTS, TABLE OF CONTENTS, continued Page Page

(c) TheThe undisclosed records would would undermined the testimony of a have undermined who gave information to the witness who from the other jury different in kind from State‘s State’s witnesses. Witnesses.

(1) Here, the witness‘ witness’ credibility could not be attacked except through the offending evidence.

The witness was (2) The was the sole much of the evidence of much source of about Boswell‘s Boswell’s gang activity. activity.

9. Prayer 33

10. Certificate of With Rule 9 of Service and of Compliance With 34

7 INDEX OF AUTHORITIES INDEX OF AUTHORITIES Authorities Page Page Supreme Court United States Supreme Court cases

Brady v. Maryland Brady Maryland 9,20 373 U.S. 83, 83 S. Ct. at 1194, 373 ED. 2d 10 L. ED. 1194, 10 2d 215 (1963)

Davis v. Alaska Davis v. Alaska 27 1105, 39 L.Ed.2d 347 (1974) 415 U.S. 308, 94 S. Ct. 1105,

US. Giglio v. U.S. 23,27 150,92 405 U.S. 150, 104 (1972) 31 L.Ed.2d 104 92 S. Ct. 763, 31

Kyles v. Whitley v. Whitley 22,29 U.S.419,115 514 U.S. 1555, 131 419, 115 S. Ct. 1555, 490(1995) 131 L.Ed.2d 490 (1995)

Napue Napue v. Illinois 28 US. 264, 79 S. Ct. 1173, 360 U.S. 1217 (1959) 1173, 3 L.Ed.2d 1217

United States v. United v. Bagley 28,29 481 (1985) 105 S. Ct. 3375, 87 L.Ed.2d 481 473 U.S. 667, 105

Court of Appeals United States Court Appeals cases

Johnson v. Mills Johnson v. 30 592 F.3d 730 (2010)

Texas Court of Criminal Texas Court Appeals cases Criminal Appeals

Authorities

Gigliobianco v. State 14,17, S.W.3d 637 (Tex. Crim. App. 2006) 210 S.W.3d

Hammer v. State Hammer v. 14 S.W.3d 555 (Tex. Crim. App. 2009) 296 S.W.3d

8 INDEX OF AUTHORITIES, INDEX OF AUTHORITIES, continued Texas Court of Criminal Texas Court Appeals cases, continued Criminal Appeals

Authorities Page Page

Harm Harm v. State 24 S.W.3d 403 (Tex. Crim. App. 183 S.W.3d 183 App. 2006)

Herndon Herndon v. State 23,26, S.W.3d 901 215 S.W.3d App. 2007) 901 (Tex. Crim. App.

Johnson v. State Johnson v. 18 967 S.W.2d 410 (Tex. Crim. App. S.W.2d 410 App. 1998) 1998)

King King v. State 17 953 S.W. 2d 266 (Tex. Crim. App. 1997) 953 1997)

Little v. State v. 25 25 991 S.W.2d 864 (Tex. Crim. App. 1999) 991 S.W.2d 1999)

Martin Martin v. State 13,14 Crim. App. 2005) 173 S.W. 3d 463 (Tex. Crim. 173

Motilla v. v. State 18 S.W.3d 352 (Tex. Crim. 78 S.W.3d Crim. App. 2002)

Macias v. State Macias v. 16 959 S.W.2d App. — S.W.2d 332 (Tex. App. Houston [14 – Houston th [14”‘ 1997) Dist.] 1997)

Pena Pena v. State 24 S.W.3d 797 (Tex. Crim. App. 353 S.W.3d 353 App. 2011)

Solomon Solomon v. State 18 App. 2001) Crim. App. 49 S.W.3d 356 (Tex. Crim.

Fury State v. Fury 25 S.W.3d 67 (Tex. App. — 86 S.W.3d Houston [1 – Houston st [1S‘Dist.] Dist.] 2005, pet. ref’d) per. ix vm-no viii INDEX OF AUTHORITIES, INDEX OF AUTHORITIES, continued Texas Court of Criminal Texas Court Appeals cases, continued Criminal Appeals

Thomas State v. Thomas 25 S.W.3d 99 (Tex. Crim. 428 S.W.3d App. 2014) Crim. App.

Vasquez v. State Vasquez 16 S.W.3d 229 67 S.W.3d 229 (Tex. Crim. Crim. App. 2002)

Westbrook v. State Westbrook 32 S.W.3d 103 29 S.W.3d App. 2000) 103 (Tex. Crim. App.

Texas Court of Appeals Texas Court Appeals cases

Brumfield Brumfield v. State 15 18 S.W.3d 18 921 (Tex. App. — S.W.3d 921 Beaumont 2000, – Beaumont pet. ref’d) 2000,pet.

In In the Matter ofC.F.C. Matter of C.F.C. 31 1999 WL675440 (Tex. App. — 1999 WL675440 – San Antonio, August August 31, 1999 (not designated 1999 designatedforpublication» for publication))

Grant v. State 13 WL 50254777, at *5 2015 WL 2015 *5 App. —– Houston (Tex. App. Houston [14 th [14‘h pet. ref’d) Dist.] Aug. 25, 2015, pet. ref’d)

Montgomery v. State Montgomery v. 821 S.W.3d 821 14 (Tex. App. —Dallas S.W.3d 14 – Dallas 1991) 1991) 14

Newton v. State Newton v. 14 S.W.3d 315 (Tex. App. — 301 S.W.3d 301 Waco 2009, – Waco pet. ref’d) 2009,pet.

v. State Ojeda v. 16 2004 WL2137653 2004 App.—E1 Paso, September 24, 2004, WL2137653 (Tex. App.—El (not designated for publication, pet. ref’d publication, pet. ref’d 2005) INDEX OF AUTHORITIES, INDEX OF AUTHORITIES, continued Texas Court of Appeals Texas Court Appeals cases, continued

Tibbs v. State Tibbs 15 125 S.W.3d 125 App. — S.W.3d 84 (Tex. App. – Houston Houston [14 th [14”‘ Dist.] 2003, pet. ref’d) pet. ref ’d)

Statutes

TEX. R. APP. TEX. PROC. 44(2)(b) APP. PROC. 17

TEX. R. APP. TEX. APP. P. 21.3, (h) 22,23

TEX. PENAL TEX. CODE §19.03(a)(2), (b)(1)(West 2014) PENAL CODE 3,31,32

CODE CRIM. TEX. CODE TEX. PROC. art. 37.071(1)(West 2014) CRIM. PROC. 3, 9

TEX. R. EVID. TEX. EVID. 401,402,403,404(b) 9,1,13

Periodicals/Legal Journals

Stephen S. Troft 29 29

Words of Words Warningfor of Warning Using for Prosecutors Using Witnesses, 47 Hastings, I.J. Criminals as Witnesses, 1.]. 1391, 1395 (1966) 1391, 1395

xi xxi THE THIRD IN THE IN COURT OF THIRD COURT OF APPEALS APPEALS AT AUSTIN, AT TEXAS AUSTIN, TEXAS

LARRY DONNELL LARRY DONNELL BOSWELL, BOSWELL, JR.§ Appellant §§ §§ CAUSE NO. CAUSE NO. 03-15-00540-CR 03-15-00540-CR V. §§ TRIAL NUMBER 72,904 COURT NUMBER TRIAL COURT §§ THE STATE THE OF TEXAS STATE OF TEXAS §§ Appellee §§

TO THE TO HONORABLE COURT THE HONORABLE COURT OF OF APPEALS: APPEALS: OF PARTIES IDENTITY OF 1. IDENTITY AND COUNSEL PARTIES AND COUNSEL COMES NOW, COMES NOW, Larry Donnell Boswell, Jr., appellant, who who would show the would show

follows: Court that interested parties herein are as follows:

LARRY DONNELL LARRY DONNELL BOSWELL, BOSWELL, JR., appellant, TDCJ TDCJ No. 02011634, FM 2054, Tennessee Colony, Texas 75886. 2664 FM Michael Unit, 2664

ROBERT D. HARRIS, ROBERT ZACHARY BOYD, HARRIS, III and ZACHARY BOYD, trial attorneys for 404 N. Main appellant, 404 Box 870, Copperas Cove, Main St., Belton, Texas, 76513, and P.O. Box

Texas, 76522, respectively.. respectively..

ERIKA ERIKA COPELAND, COPELAND, appellate attorney for appellant, PO. P.O.

Box 399, Cedar Park, Texas 78613. Box

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 11 WILLIAM NELSON WILLIAM NELSON BARNES BOB ODOM, BARNES and BOB ODOM, Bell County Assistant District Attorneys, trial and appellate attorneys, respectively, for appellee, the State

Box 540, Belton, Texas 76513. of Texas, P.O. Box of

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 2 THE THIRD IN THE IN COURT OF THIRD COURT OF APPEALS APPEALS AT AUSTIN, AT TEXAS AUSTIN, TEXAS

LARRY DONNELL LARRY DONNELL BOSWELL, BOSWELL, JR.§ Appellant §§ §§ CAUSE NO. CAUSE NO. 03-15-00540-CR 03-15-00540-CR V. §§ TRIAL NUMBER 72,904 COURT NUMBER TRIAL COURT §§ THE STATE THE OF TEXAS STATE OF TEXAS §§ Appellee §§

STATEMENT OF 2. STATEMENT THE CASE OF THE CASE On June 11, On 11, 2015, a jury convicted Larry Donnell Boswell, Jr. of the capital

TEX. PENAL offense of murder. (R.R. 7, p. 74) and, see TEX. CODE §19.03(a) (2) PENAL CODE (West 2014) (C.R. 1, As the State had l, p. 77). As had not sought the death penalty, the trial

court sentenced Mr. Boswell to to life life in in the Texas Department of Criminal Justice‘s Justice’s

TEX. Institutional Division without the possibility of parole. (R.R. 7, p. 75), and see TEX.

CODE CRIM. CODE PROC. art. 37.071(1) (West 2014). Boswell gave timely notice of CRIM. PROC. appeal, and the trial court certified (CR. 1, certified his right to do so. (C.R. 1, pp. 81, 130). 130).

BACKGROUND 3. BACKGROUND

Paul Sterling testified that he was Waco for a meeting from Waco was called to Killeen from

with other members of of the Gangster Disciples (hereafter ―G.D.‘s). “G.D.’s). Once there, there, he

met home used by met in a home by the gang as a clubhouse, and there, he testified, was asked testified, he was

to to go ―hit “hit a lick‖ lick” by by the G.D.‘s “Governor”, Larry Boswell, Jr. G.D.’s ―Governor‖, “Word.” (R.R. Jr. aka ―Word.‖

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 3 5, p. 68). Sterling said that he understood ―hit “hit a lick‖ mean rob someone. Sterling lick” to mean

“Slim” “Red”, ―Slim‖ testified that he refused to undertake the task, but Ricky Brandon, aka ―Red‖,

“DC.” (Danny “Horsehead” (Kevin Lee Stafford) and ―D.C.‖ (Stephen Mitchell Lewis), ―Horsehead‖

home armed Carruth) agreed to the task and left the home armed with a pistol and a rifle Red’s rifle in Red‘s

(RR. 5, pp. 69-70). Sterling said that the four were white Suburban. (R.R. were gone thirty to

Red had been shot during the robbery. forty minutes and returned to announce that Red

when Red According to the returning robbers, when Red had emerged emerged unexpectedly from a

back bedroom of the house being robbed, Slim had back bedroom had panicked and accidentally shot

Red at the scene. By announced that they had left Red Red. (R.R. 5, p. 73). Slim announced By the member of the gang time Boswell and another member gang returned to retrieve Red, Sterling said,

the police had Red’s body. (R.R. 5, had already arrived so they returned home without Red‘s 5,

pp. pp. 74-75).

was targeted by Jamie Arrington was by the would-be robbers}1 Arrington testified would-be robbers.

was kicked in, and he, his girlfriend and that sometime after midnight his front door was

gun point by two daughters were accosted at gun two by four armed He testified that they armed men. He

bound him and his family with duct tape and eventually put them bound him them in a bathtub while

was searched for cash. (R.R. 5, pp. 27-29). the house was The robbers threatened The

1 ‘ The prosecution suggested in argument that Arrington was The was targeted because he was known to was known home ill-gotten gain that he earned through illegal enterprise. (R.R. 7, p. 70). keep in his home

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 4 them to disclose where fiancee to induce them Arrington and his fiancee where Arrington had hidden his

testified that he heard a gunshot as he and money. (R.R. 5, pp. 32-33). Arrington testified

were leaving, they warned his family lay in the bathtub, and that as the robbers were him warned him

managed to get loose from not to follow. Arrington managed from his bindings, and he ran outside

find that three of the robbers had fled; to find home had drug the fourth outside his home fled; they had

from an apparent gunshot wound. where he lay dead near his porch from where (RR. 5, pp. 34- wound. (R.R.

37).

Terry Kaiser, a homicide detective with the Killeen Police Department,

man dead from a single testified that on his arrival at the crime scene he found a man

wound to the chest. (R.R. 5, pp. 102-106). gunshot wound 102-106)?2 Kaiser opined that the physical

evidence indicated to him man had him that the man had actually been been shot in the house and his

body dragged to its last position near Arrington‘s body Arrington’s front porch. (R.R. 5, 130). No p. 130). 5, p.

by the robbers were ever recovered. guns used by

Daniel Carruth, “D.C.”, testified Canuth, aka ―D.C.‖, testified that that Boswell (or “Word”) had become (or ―Word‖)

the G.D.‘s “Governor” or leader when Boswell took over that G.D.’s ―Governor‖ that role after after the G.D.‘s G.D.’s

was removed. (R.R. 5, p. 140). former leader was On the night of 140). On of the 16 th 16”‘, , Carruth

him and three other gang testified, Boswell instructed him members to go gang members He go hit a lick. He

2Ricky 2 Ricky Brandon man through fingerprint was later identified as the dead man Brandon was fingerprint comparisons against a known criminals. fingerprint data base of known

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 5 was ordered by said that he was members gang members by Boswell to act as look-out for the other gang

when when they stormed into Arrington‘s He said that after they entered the house, Arrington’s house. He

home’s occupants were accosted, tied with duct tape and put in the bath tub as the home‘s

the house was searched for Arrington‘s Arrington’s cash. (R.R. 5, p. 146). 5, p. 146). Carruth said that that

When he went during the robbery he heard a gunshot from the back bedroom. When went to

saw that Slim had investigate, he saw had accidentally shot Red when the latter came Red when came

unexpectedly from a back bedroom. (R.R. 5, p. 147). testified that he tried 147). Carruth testified

to to help Slim carry Red from the home back to to Red‘s SUV, but eventually they left Red’s SUV, left

when Red his body near the front porch when Red proved too heavy for the two men to carry two men

Word 148-149). After disclosure of the shooting to Word to the get-away car. (R.R. 5, pp. 148-149).

on their their return to gang’s clubhouse, Carruth said that to the gang‘s that Boswell and another gang

member, Beau, returned to to the shooting to Red’s body, but by to retrieve Red‘s was by then, it was

The police were already on the scene. (R.R. 5, pp. 150-151). too late. The 150-151).

Bowman, a former police officer and expert on John Bowman, on gangs in general and andthe the

when Brandon testified that when Gangster Disciples in particular, testified was identified Brandon was identified his

who was girlfriend eventually led police to Paul Sterling who was brought in for questioning. questioning.

Bowman said that he questioned Sterling who, after initially denying any knowledge Bowman knowledge

knew about the night Red of the crime, eventually told the police all he knew of Red was was shot,

who was including who was involved in the planning and execution of the botched robbery.

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 6 Bowman also gave detailed testimony about the Over objection, Bowman (R.R. 6, p. 48). Over

G.D.‘s, G.D.’s, their their origin, origin, evolution and history history as a violent street street gang, their their corporate

influence in the state. (R.R. 6, pp. 35, et. structure and the nature and extent of their influence et.

seq.). seq.). Bowman identified Bowman identified Boswell as as the gang‘s “Governor” since the gang’s leader or ―Governor‖

spring of 2012, and he described Boswell‘s Boswell’s ascent to his leadership role in the gang.

The trial court had 58)}3 The (R.R. 6, pp. 58). remove his shirt for the jury, had Boswell remove jury, and

Bowman presented a detailed explanation for the various tattoos covering Boswell‘s Bowman Boswell’s

body and arms which upper body Bowman said had detailed meanings to other gang which Bowman

pp.54-57 and see State‘s members. (R.R. 6, pp.54-57 members. He concluded his State’s Exhibits 41-45). He

testimony by by discussing the level of cooperation he had received in his investigation

from members of from other members of the G. D.‘s. D.’s.

3 Bowman’s testimony was admitted over objection, and itit became one of Bowman‘s of the subjects of of Boswell‘s motion for new trial B0swell’s trial as well as the subject of of issues to to follow in in this this brief. brief. Evidence more detail below. pertinent to those issues will be discussed in more

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 7 STATEMENT REGARDING 4. STATEMENT REGARDING ORAL ARGUMENT ORAL ARGUMENT would aid the Court in reaching Appellant Counsel believes that oral argument would

its decision and, therefore Counsel requests such argument.

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 8 PRESENTED ISSUES PRESENTED 5. ISSUES

ONE ISSUE ONE ISSUE

The trial court erred in admitting evidence of prior bad acts over defense The

counsel‘s Texas Rules of Evidence counsel’s objections under Texas and 404(b). Evidence 401, 402, 403 and

was affiliated with any Specifically, counsel objected to testimony that Boswell was Specifically,

14- criminal street gang and to any evidence related to any such gang. (R.R. 5, pp. 14-

15). 15).

TWO ISSUE TWO ISSUE

The trial court abused its discretion by The by denying Boswell‘s new trial Boswell’s motion for new

on a Brudy4 based on when the prosecution failed to disclose a witness‘ Brady4 violation when witness’ history

of reprimands while serving as a police officer. of officer.

THREE ISSUE THREE ISSUE

The trial court abused its discretion by The by denying Boswell‘s new trial Boswell’s motion for new

on a Brady based on when the prosecution failed to disclose impeachment Brady violation when impeachment and

bias evidence concerning a State‘s State’s witness that included evidence of a history of

officer. reprimands while the witness served as a police officer.

"4 Brady Brady v. Maryland, 83 S. Ct. 1194, 1194, 10 ―Brady.‖ hereafter“Brady.” 10 L.Ed.2d 215, 373 U.S. 83 (1963) hereafter

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 9 SUMMARY OF SUMMARY ARGUMENTS THE ARGUMENTS OF THE The trial court erred in The in admitting evidence of Boswell‘s Boswell’s gang affiliation affiliation as as

The evidence was gang related evidence. The well as other gang was irrelevant and offered only

proof of Boswell‘s proof of The Boswell’s character and that he acted in conformity with that character. The

was irrelevant because it evidence was make probable the existence it had no tendency to make

of any fact of consequence. of consequence. There were other reasons beside gang-affiliation for

commit the charged crime. Moreover, even if Boswell to have acted as he did to commit if

relevant, the probative value of the offending evidence, if was substantially if any, was

by the danger of unfair prejudice as the jury was outweighed by shown to have been was not shown

equipped necessarily to evaluate the probative force of all the gang related

As a result, there was testimony. As was a clear disparity between its probative value and

the danger of unfair prejudice.

Boswell‘s Boswell’s motion for new trial trial was predicated in in part on Brady Brady violations.

The State, however The “gang however inadvertently, failed to provide disciplinary records of its ―gang

expert‖, officer, who expert”, a former police officer, who testified extensively about street gangs, their

origins and evolution, and particularly particularly Boswell‘s Boswell’s affiliation affiliation and standing within a

would have provided evidence of the Those disciplinary records would specific gang. Those

witness‘ witness’ bias because his record of participation in other trials as an expert on gangs

was reflected gang related subjects was and gang which he used to reflected in his curriculum vitae which

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant l0 10 promote promote his efforts to secure another job with law enforcement. The records also enforcement. The

impeachment evidence because they detailed misstatements of offered impeachment of fact he had

made to his superiors and thus undermined made The evidence undermined his veracity as a witness. The

was was different in kind from was material to Boswell because his testimony was from other

was no witnesses, there was impeachment evidence, and his testimony no other source for impeachment

bolstered that that of of the State‘s State’s accomplice witnesses.

ONE RESTATED ISSUE ONE 7. ISSUE RESTATED The trial court erred in admitting evidence of prior bad acts over defense The

counsel‘s Texas Rules of Evidence counsel’s objections under Texas and 404(b). Evidence 401, 402, 403 and

was affiliated with any Specifically, counsel objected to testimony that Boswell was Specifically,

14-15). criminal street gang. (R.R. 5, pp. 14-15).

STATEMENT OF STATEMENT EVIDENCE PERTINENT EVIDENCE OF PERTINENT was affiliated Defense counsel objected to any evidence that Boswell was affiliated with any

street street gang, as as well as to “gang” or ―gang to the use of such terms as ―gang‖ member” in “gang member‖

was not relevant and noted describing him. Counsel complained that such evidence was

that that Boswell‘s Boswell’s indictment before the jury jury did not allege organized criminal activity. activity.

As a result, any alleged gang appellation, affiliation As was irrelevant. affiliation or activity was

would be overwhelmingly Moreover, counsel argued that any evidence of that nature would

prejudicial to prejudicial to Boswell‘s Boswell’s case and would certainly certainly outweigh any probative value

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 11 l 1 by the offending testimony. (R.R. 5, pp. 14-16). offered by The State countered that 14-16). The

Boswell‘s was admissible ―to Boswell’s gang affiliation was show motive, opportunity, intent, plan, “to show

preparation, knowledge, identity, absence of mistake or accident, or other

enumerated causes.‖ causes.” In fact, fact, the State urged, Boswell‘s Boswell’s gang affiliation affiliation was ―part “part

of of what made him a party party to to this this offense…‖, offense...’, and further, 5 further, that that Boswell‘s Boswell’s gang

affiliation affiliation was how one of the State‘s “knows the defendant so identity State’s witnesses ―knows identity

comes into play as well.‖ well.” (R.R. 5, p. 16). 5, p. 16).

The trial trial court denied Boswell‘s Boswell’s motion to exclude evidence of Boswell‘s Boswell’s

gang affiliation. gang 18). As affiliation. (R.R. 5, p. 18). As a result, the jury heard extensive testimony in

of the trial as detailed above; including testimony as noted the guilt/innocence phase of

that Boswell was member of was not only a member of the Gangster Disciples, but that he was, in

fact, fact, its “Governor” and the one who had ordered the robbery the subject its leader or ―Governor‖

RR. 5, pp. 63, 68, 79-80; of this offense. See, e.g., testimony of: Paul Sterling at R.R. of

RR. 5, pp. 140-144, Daniel Carruth at R.R. 140-144, 157. The evidence also included, again as 157. The

remove his shirt before the of an order from the trial court that Boswell remove the result of

jury, a description jury, and explanation by by the State‘s State’s gang ―expert‖, “expert”, John Bowman, of of

Boswell‘s Boswell’s various tattoos. tattoos. (R.R. 6, pp. 26 et. 6, pp. specifically, at pp. 41, 54, et. seq., and, specifically,

and 58, 58, as well as State‘s State’s Exhibits 41-45 (photos of of Boswell‘s Boswell’s tattoos).

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 12 12 LAW APPLICABLE LAW APPLICABLE

by the At trial, all relevant evidence is admissible unless otherwise excepted by

TEX. R. EVID. Constitution, statute, or other rules. TEX. EVID. 402. ―Relevant “Relevant evidence‖ evidence” is is

defined as evidence having ―any defined “any tendency to to make the existence of any fact fact that that is

of consequence to the determination of of more probable or less probable of the action more

than it it would be without the evidence.‖ TEX. R. EVID. evidence.” TEX. EVID. 401.

Evidence of other crimes, wrongs, or acts is not admissible to prove the

show action in conformity with the character. character of a person in order to show TEX. character. TEX.

EVID. 404(b). However, such evidence may R. EVID. may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident. Martin Martin v. 173 S.W. 3d v. State, 173 466 (Tex. 3d 463, 466

App. 2005) (citing Rule Crim. App. may introduce Rule 404(b)). Accordingly, a party may

extraneous offense evidence if if (apart from character conformity) it it logically serves

make more to make more or less probable an elemental fact, an evidentiary fact that inferentially

leads to an elemental fact, or defensive evidence that undermines an elemental fact.

Id. Ia’.

may be excluded if Relevant evidence may if its probative value is substantially

TEX R. EVID. among other things, unfair prejudice. TEX by a danger of, among outweighed by EVID.

Grant v. State, No. 14-13-01077-CR 403; and see, Grant WL 50254777, at *5 14-13-01077-CR WL *5 (Tex. App. App.

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant l3 13 —– Houston Houston [14 th [14"‘ Aug. 25, 2015, no Dist.] Aug. no pet. pet. h.). In its seminal decision in

Montgomery identified four non-exclusive Montgomery v. State, the Court of Criminal Appeals identified

factors to be considered in determining whether evidence should be excluded under

Rule 403. Those factors were: Rule were: (1) the probative value of the evidence; (2) the

potential to impress the jury in some irrational, yet indelible, way; (3) the time some

needed to develop the evidence; and, (4) the proponent‘s The proponent’s need for the evidence. The

Waco reviewed the Court of Criminal Appeals and the Court of Appeals at Waco

Montgomery Montgomery decision in Gigliobianco v. 210 S.W.3d v. State, 210 641-42 (Tex. S.W.3d 637, 641-42

Crim. App. 2006)(footnotes citations omitted) and Newton S.W.3d 315, 301 S.W.3d Newton v. State, 301

App. — 322-23 (Tex. App. 322-23 Waco 2009, pet. – Waco pet. ref’d)(footnote citations omitted). In

Gigliobianco, the Court restated the pertinent factors as follows: follows:

[A] when undertaking Rule [A] trial court, when Rule 403 analysis, must must balance (1) the of evidence along with (2) the inherent probative force of the proffered item of proponent‘s need for that proponent’s that evidence against (3) (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency ofof the evidence to main issues, (5) any tendency of the confuse or distract the jury from the main evidence to be given undue undue weight byby a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that consume an inordinate amount presentation of the evidence will consume amount ofof time or merely repeat evidence already admitted. Of Of course, these factors may may well blend together in practice. practice. --Gigliobianco at 641-42.

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 14 14 Rule 403, the Court of Criminal Appeals wrote in Newton, Rule Newton, ―envisions “envisions when there is a ‗clear disparity between exclusion of evidence only when ‘clear between the degree ” of of prejudice of the offered evidence and its its probative value.‘ value.’ ‖

--Newton at 322-23 (quoting Hummer --Newton Hammer v. v.

S.W.3d 555, 568 (Tex. Crim. State, 296 S.W.3d Crim. App. 2009)). STANDARD OF STANDARD REVIEW OF REVIEW An appellate court reviews a trial An trial court‘s court’s ruling under the Rules of Evidence

for an abuse of discretion. Martin S.W.3d at 467. If 173 S.W.3d Martin v. State, 173 was If the ruling was

on any theory of law applicable to the case, in light of what correct on was before the what was

trial court at the time the ruling as made, a reviewing court must uphold the

judgment. A trial judgment. Id. A trial court‘s court’s ruling on the admissibility of of evidence will be upheld

was within the zone of reasonable disagreement. Id. as long as the ruling was

ARGUMENT ARGUMENT

Evidence of Boswell‘s gang membership Boswell’s gang was not relevant. Here, the evidence membership was

of gang affiliation of make probable the existence of any fact of affiliation had no tendency to make of

was introduced simply in an attempt to connect consequence. Rather, that evidence was

show his bad character. gang to show Boswell to a gang The State could have presented a clear character. The

and understandable case explaining that Boswell participated in, or even authored,

the plan to to rob Arrington of the latter‘s latter’s ill-gotten ill-gotten gains without interjecting

unnecessary information about gangs or Boswell‘s Boswell’s affiliation affiliation with a gang. Had the

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant l5 15 State presented its case without the evidence of Boswell‘s gang relationship, the jury Boswell’s gang

of the night could have undoubtedly followed and understood the sequence of events of

was not same of the robbery. Moreover, the offending testimony was of same transaction

Rule 404(b). contextual evidence, and thus not admissible as an exception under Rule

Indeed, as Houston‘s Houston’s 14 14”‘ th District Court of Appeals noted, it it is only in situations

commit where there is no other reason for the defendant to have acted as he did to commit where

come in during the guilt-innocence a crime that gang-affiliation evidence should come

stage of a trial, and that was Tibbs v. State, 125 was not the case here. See Tibbs S.W.3d 84 125 S.W.3d

App. — (Tex. App. Houston [14 – Houston th [l4“‘ pet. ref’d), Dist.] 2003, pet. by Justice ref’cl), concurring opinion by

Anderson, citing Brumfield Anderson, App. — S.W.3d 921, 925-26 (Tex. App. 18 S.W.3d Brumfield v. State, 18 Beaumont – Beaumont

pet. ref’d) 2000, pet. supplied). Boswell‘s ref ’d) (emphasis supplied). Boswell’s gang affiliation was not part of affiliation was of the

why the murder of the explanation for why reason for the murder, or part of murder occurred as it it

did. did. In fact, fact, Brandon‘s way itit did if Brandon’s death could have occurred the way if a number of of

commit a robbery. In that had simply decided to commit people randomly gathered together had

scenario, Boswell could still be guilty of the offense as an accomplice, and clearly,

whether he and the men whom he associated for the robbery were members men with whom members of of

would play no gang or not would a gang See e.g., Macias no role in the offense. See Macias v. State, 959

S.W.2d App. —– Houston S.W.2d 332 (Tex. App. Houston [14 th [l4“‘ 1997) and cf. Dist.] 1997) cf the unpublished opinion

of Ojeda v. of v. State, 2004 App.—El Paso, September 24, 2004, pet. WL2l37653, (Tex. App.—El 2004 WL2137653, pet.

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant l6 16 ref’d, 2005 (not designated for ref’d, 2005 for publication) was publication) (gang-membership evidence was

was not used as character conformity evidence) specifically linked to the case and was

Vasquez v. and Vasquez S.W.3d 229 v. State, 67 S.W.3d App. 2002). 229 (Tex. Crim. App.

Even if Even Rule 403 the evidence of if relevant, under Rule of Boswell‘s Boswell’s gang affiliation affiliation

was Value of the evidence. None was so prejudicial as to outweigh any probative value of the None of

pertinent factors cited above as dispositive of a Rule 403 analysis justify Rule justify the

admission of the offending evidence. Rather, the jury’s View during trial jury‘s view trial of of a

man disrobed at the order of the trial court to expose his tattoos must have shirtless man

on the jury. had a substantial impact on jury. Besides the obvious potential tendency to

reflection on the import of such a display (after all, the distract the jury from a sober reflection

had photos of the tattoos it State had shown the jury) the offending evidence it could have shown

was a suggested a jury decision could rationally be based on the fact that Boswell was

sufficiency of evidence adduced gangster as his tattoos indicated rather than on the sufficiency

To bolster that improper basis for the to prove his association with the robbery. To

jury‘s decision, the State presented to jury’s to the jury an expert whose testimony about

Boswell‘s Boswell’s gang involvement in general and in in Killen in was the in particular was

centerpiece of the State‘s State’s case. All of that evidence allowed the jury the opportunity

when the jury undue weight when to give the testimony an inordinate, undue was not equipped jury was

S.W.3d at 210 S.W.3d to evaluate the probative force of the testimony. See Gigliobianco, 210

Cause No. 03-l5-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant l7 17 641-42. Considering the trial testimony about gangs in general, testimony about

Boswell‘s Boswell’s relationship to to gang activity activity in in particular, particular, as as well as the accomplice

which resulted testimony that Boswell, as the leader of the gang, planned the robbery which

Brandon’s death, there is in Brandon‘s is a clear disparity disparity between the danger of unfair prejudice

As a result, the from the complained-of testimony and its probative value. As resulting from

trial trial court abused its its discretion by by overruling Boswell‘s Rule 403 objection to Boswell’s Rule

testimony concerning Boswell‘s Boswell’s alleged gang affiliation.

HARM HARM

Where the trial court erred in admitting evidence of Boswell‘s Where Boswell’s gang affiliation,

reversal is required, unless after examining the record, it it is determined that the error

did not affect affect Boswell‘s Boswell’s substantial rights. TEX. 4. APP. rights. TEX. PROC. 44(2) (b); King APP. PROC. King

v. 2d 266, 271 v. State, 953 S.W. 2d App. 1997). 271 (Tex. Crim. App. 1997). Substantial rights are not

by the erroneous admission of evidence if, affected by if, after examining the record as a

influence the jury, whole, a reviewing court has a fair assurance that the error did not influence jury,

had but a slight effect. Solomon or had Solomon v. S.W.3d 356, 365 (Tex. Crim. App. v. State, 49 S.W.3d

2001). In assessing the likelihood that the jury’s jury‘s decision was adversely affected by by

the error, the appellate court should consider everything in the record, including any

testimony or physical evidence admitted for the jury’s jury‘s consideration, the nature of

how the the evidence supporting the verdict, the character of the alleged error, and how

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 18 18 error might be considered in connection with other evidence in the case. See Motilla

S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v. v. State, 78 S.W.3d S.W.3d v. State, 63 S.W.3d

444-45 (Tex. Crim. App. 442, 444-45 The reviewing court should examine App. 2001). The examine the entire

much as possible, the probable impact of the error upon trial record and calculate, as much upon

the rest of the evidence. Coble v. State, 330 S.W.3d 253 (Tex. Crim. 330 S.W.3d App. 2010); Crim. App.

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

A review of the evidence here indicates the admission of Boswell‘s A Boswell’s gang

because: affiliation contributed to his guilty verdict. That follows because: affiliation

The State was (1) The when it was the source of the error when it introduced irrelevant

of character conformity; evidence of

(2) The State State emphasized Boswell‘s Boswe1l’s gang affiliation affiliation in its closing

arguments at nearly every opportunity. See, e.g., e. g., R.R. 7, pp. 33, 35, 36, 41, 44, 47,

48, 50 and 68;

The State elicited evidence from (3) The from every one of of its witnesses that

was affiliated Boswell was was the leader of the Gangster Disciples. See affiliated with or was

“Background Evidence‖ ―Background Evidence” and ―Statement “Statement of Pertinent Evidence‖ Evidence” above;

(4) The State‘s State’s gang expert testified testified at at length about gangs in general

and the Gangster Disciples specifically; specifically; how the G.D.‘s G.D.’s and other gangs operated,

with what how he determined that what criminal activities gangs were associated, and how

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 19 19 was not only affiliated with but the leader of the G.D‘s. Boswell was G.D’s. He also not only

described various gang symbols and their meanings to the jury but pointed to tattoos

on Boswell‘s Boswell’s body that he said substantiated his claims after after the trial trial court had

remove his shirt before the jury. Boswell remove Bowman at R.R. jury. See, testimony of John Bowman

6, 6, pp. 52 through 60 and State‘s State’s Exhibits 41 41 through 46.

In sum, a great deal of the State‘s State’s case against Boswell consisted of evidence

concerning Boswell‘s Brandon’s gang affiliation and not the robbery that resulted in Brandon‘s Boswell’s gang

was calculated to prejudice the jury against death. Presentation of that evidence was

Boswell as a bad gangster, and as a result, that evidence likely affected his

At the very least, in light of the record as a whole, substantial rights to a fair trial. At

no fair assessment that the error in admission of the offending evidence there can be no

did not influence on their verdict. Solomon influence the jury or have but a slight effect on Solomon v. v.

State, S.W.3d at 365. 49 S.W.3d

TWO RESTATED ISSUE TWO 8. ISSUE RESTATED The trial court abused its discretion by The by denying Boswell‘s new trial Boswell’s motion for new

on aaBrady5 based on when the prosecution failed to disclose a witness‘ Brady5 violation when witness’ history

of reprimands while serving as a police officer. of officer.

5 Brady Brady v. Maryland, 83 S. Ct. 1194, US. 83 (1963 hereafter 10 L.Ed.2d 215, 373 U.S. 1194, 10 ―Brady).‖ hereafter“Brady).”

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 20 THREE RESTATED ISSUE THREE 9. ISSUE RESTATED The trial court abused its discretion by The by denying Boswell‘s new trial Boswell’s motion for new

on a Brady based on when itit was Brady violation when shown that the prosecution failed to disclose was shown

the disciplinary history of of a former police officer who testified testified as as the State‘s “gang State’s ―gang

expert‖ expert” where showed the witness‘s where the records not only showed witness’s bias but offered substantial

basis for impeachment.

STATEMENT OF STATEMENT EVIDENCE PERTINENT EVIDENCE OF PERTINENT In post-conviction proceedings, Boswell argued that the State had failed to

disclose impeachment/bias evidence regarding its “gang expert‖ its ―gang expert” witness, John

Bowman. Here, evidence is adduced related to both issues two Bowman. two and three.

Bowman, as noted above, testified Bowman, testified extensively about the Gangster Disciples

and his findings findings with regard to to Boswell‘s Boswell’s involvement with and leadership of that that

Bowman’s testimony was the last, gang. (See, R.R. 6, pp. 26-79). Bowman‘s last, and arguably

by the State. His testimony focused on the most damning, testimony presented by

gang’s activities gang‘s activities in in Texas and in in Killeen in particular, as well as in particular, as Boswell‘s Boswell’s alleged

influence and power influence He testified that Boswell was power within the gang. He was not just just a

member of of the gang but, but, in in fact, “Govemor” or boss of the Gangster Disciples fact, the ―Governor‖

in in Central Texas. (R.R. 6, 6, p. p. 58). Bowman testified 58). Bowman testified that that ―these guys” have been “these guys‖

much criminal activity as any ―organization involved in as much “organization in the history of Killeen.‖ Killeen.”

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 21 21 (R.R. 6, 6, p. p. 52). 52). He identified identified and interpreted Boswell‘s Boswell’s tattoos after after the trial trial court

remove his shirt before the jury during trial — ordered Boswell to remove – a not innocuous

event when the State had photographs available for the jury’s jury‘s inspection. (R.R. 6,

p. 54). Lastly, Bowman testified that he actually aided in the murder Bowman murder investigation

itself, and, as a result, he reported on statements he personally took from one of the

participants in the robbery, Daniel Carruth (―D.C.‖) owner of the house (“D.C.”) and from the owner

where the planning for the robbery allegedly occurred, Timothy Skobel. where Skobel. (R.R. 6,

pp. pp. 65-70).

During the hearing on Boswell‘s Boswell’s motion for new Bowman acknowledged new trial, Bowman acknowledged

had been that he had been disciplined by by the Killeen Police Department while employed as a

He testified that he had, in fact, accepted a 56-day sergeant with that department. He

from the Department followed immediately by unpaid suspension from by his retirement in

May, 2014, after he admitted to the Department that he had committed at least six May,

Violations of the Department‘s violations Department’s policies. policies. (See, (See, Defendant‘s Defendant’s Motion Exhibit A, C.R.

1, pp. 87, 96-123). That information had not been provided to 1, to Boswell‘s Boswell’s counsel.

Bowman mentioned those disciplinary actions during his testimony in Neither had Bowman

trial. Finally, he acknowledged that the disciplinary actions were were omitted from his

when the State presented him curriculum vitae (c.v.) provided to the jury when him as an

“expert” on gangs and gang activity. ―expert‖ activity. (See, R.R. 6, 6, p. p. 27 (State‘s (State’s Exhibit 36) and

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. ofTexas v. The State of

Brief of Appellant 22 Defendant‘s Motion (Exhibit B) Defendant’s Motion B) (C.R. 1, 1, p. 125)). 125)). Boswell argued that the omission

of of that Bowman’s c.v. that information from Bowman‘s c.V. and the State‘s State’s failure failure to to disclose the

information before trial constituted violations of Brady Brady and the dictates of its

progeny including Kyles v. Whitley, US. 419 Whitley, 514 U.S. 419 (1995) and Giglio v. U.S., 405

U.S. 150, 31 L.Ed.2d 104 150, 92 S. Ct. 763, 31 Had the defense had 104 (1972). Had had this

information, Boswell‘s Bowman’s credibility Boswell’s counsel argued, Bowman‘s credibility could have been

shown to the jury. impeached and his bias shown jury. (R.R. 9, pp. 44-46). However, after

hearing testimony and argument of counsel, the trial trial court denied Boswell‘s Boswell’s motion

new trial. (R.R. for new (RR. 9, p. 32).

APPLICABLE LAW —– NEW APPLICABLE LAW TRIAL NEW TRIAL

The new trial for any of The trial court must grant the defendant a new of the reasons

TEX. R. APP. articulated in TEX. “when the verdict APP. P. 21.3, including ―when Verdict is is contrary to to the

law and the evidence.‖ evidence.” TEX. R .APP. TEX. R “The trial .APP. P. 21.3(h). ―The trial court retains the

power to grant a new discretionary power TEX. R. new trial for any legal reason not listed in TEX.

APP. P. 21.3.‖ APP. Vigil, No. 21.3.” State v. Vigil, 08-13-00273-CR, 2015 No. 08-13-00273-CR, WL 2353507, at *3 2015 WL *3 (Tex.

App. — App. May 15, – El Paso May pet.)(not designated for 15, 2015, no pet.)(n0t for publication). While ―[t]he publication). While “[t]he

defendant need not establish reversible error as a matter of law before the trial court

may exercise its may its discretion in in granting a motion for new trial trial (,) (,) … trial trial courts do

new trial unless the defendant demonstrates that not have the discretion to grant a new

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 23 flawed and that the flaws was seriously flawed his first trial was flaws adversely affected his

trial.” Herndon substantial rights to a fair trial.‖ S.W.3d 901, 909 (Tex. Crim. Herndon v. State, 215 S.W.3d

App. 2007.

STANDARD OF STANDARD REVIEW— NEW OF REVIEW— TRIAL NEW TRIAL

A reviewing court reviews the trial A trial court‘s court’s denial of a new trial trial for abuse of

v. Herndon, discretion. State v. S.W.3d at Herndon, 215 S.W.3d at 906. In reviewing that that denial, denial, ―[an “[an

appellate court] looks to the grounds pleaded by movant in the motion and by the movant

new trial.‖ determines whether any of those grounds provide a basis for granting the new trial.”

State v. v. Fury, 186 S.W.3d 67, 73 186 S.W.3d — Houston 73 (Tex. App. – Houston [1 st [l5‘Dist.] pet. ref’d). 2005,pet. Dist.] 2005, ref’d).

A trial A trial judge ―cannot “cannot grant a new trial trial on mere sympathy, an inarticulate inarticulate hunch, or

simply because he personally believes that the defendant is innocent or received a

deal.” Herndon, raw deal.‖ marks omitted]. S.W.3d at 907 [Internal quotation marks Herndon, 215 S.W.3d

Instead, even where new trial on interest of justice grounds, ―[a] where a defendant urges a new “[a]

new trial, whether for guilt or punishment, requires a valid legal claim.‖ motion for a new claim.”

S.W.3d 99, 107 Thomas, 428 S.W.3d State v. Thomas, “To grant a new 107 (Tex. Crim. App. 2014). ―To new trial

for a non-legal or legally legally invalid reason is discretion.” Hemdon, is an abuse of discretion.‖ Herndon, 215

S.W.3d at 907. While S.W.3d While the Court of Criminal Appeals has declined to set bright-line

rules for the appellate courts to use in assessing whether the trial court abused its

TEX. R. APP. discretion on a ground not enumerated in TEX. APP. P. 21.3, the Court of of

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. ofTexas v. The State of

Brief of Appellant 24 24 “a trial Criminal Appeals has suggested ―a trial court would not generally abuse its its

new trial if discretion in granting a motion for new if the defendant: (1) articulated a valid

new trial; (2) produced evidence or pointed to evidence legal claim in his motion for new

showed prejudice to his in the trial record that substantiated his legal claim; and (3) showed

Rule 44.2 of the Texas Rules of substantial rights under the standards in Rule of Appellate

Procedure.” Herndan, Procedure.‖ S.W.3d at 909. Herndon, 215 S.W.3d

APPLICABLE LAW —– BRADY APPLICABLE LAW VIOLATIONS BRADY VIOLATIONS

Due process requires prosecutorial disclosure of information material to guilt Due

or innocence that is favorable to the defendant. Brady, 373 U.S. at 87-88, 83 S. Ct.

would 1196-97. This rule recognizes the reality that suppression of such evidence would at 1196-97.

give the State an unfair advantage in ―shap(ing) “shap(ing) a trial trial that bears heavily on the

defendant(;)‖ defendant(;)” the affirmative by Brady affirmative disclosure requirements imposed by Brady help to

avoid ―casting “casting the prosecutor in the role of an architect of a proceeding that does not

comport with standards of justice.” justice.‖ Id. at 88, 83 S. Ct. at 1197. 1197.

“A Brady ―A when the state suppresses, willfully or Brady violation occurs when

defendant.” Harm inadvertently, evidence favorable to a defendant.‖ Harm v. S.W.3d 403, 183 S.W.3d v. State, 183

406 A defendant states a proper Brady 406 (Tex. Crim. App. 2006). A Brady claim where: (1) ( 1)

―the “the State fails fails to to disclose evidence, regardless of the prosecution’s prosecution‘s good faith faith or

bad faith;‖ faith;” (2) (2) ―the “the withheld evidence is is favorable to to him;‖ him;” (3) (3) ―the “the evidence is

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 25 material, that is, is, there is a reasonable probability that had the evidence been

trial would have been different[;]‖ disclosed, the outcome of the trial different[;]” and (4) (4) ―the “the

evidence central to the Brady Brady claim [is] court.” Pena [is] admissible in court.‖ Pena v. State, 353

S.W.3d 797, 809 (Tex. Crim. App. 2011). S.W.3d

“The state‘s ―The state’s duty to reveal Brady when the Brady material to the defense attaches when

information comes into into the state‘s state’s possession, whether or not the defense requested

information.” Harm, the information.‖ Harm, 183 183 S.W.3d at “However, the state at 407. ―However, state is is not required to to

appellant’s behalf, or furnish seek out exculpatory evidence independently on appellant‘s

appellant with exculpatory or mitigating evidence that is fully fially accessible to appellant

from other sources.‖ Id. ―Favorable sources.” Id. “Favorable evidence is is any evidence that, that, if if disclosed and

used effectively, may make the difference between may make between conviction and acquittal. It

and impeachment includes both exculpatory and evidence.” Id. ―Exculpatory impeachment evidence.‖ “Exculpatory evidence

which tends to justify, excuse or clear the defendant is testimony or other evidence which

from alleged fault guilt.” Id fault or guilt.‖ “Impeachment evidence is Id at 866-67. ―Impeachment is that which which is

offered to dispute, dispute, disparage, deny, or contradict.‖ S.W.2d 864, 991 S.W.2d contradict.” Little v. State, 991

1999). 867 (Tex. Crim. App. 1999).

In Boswell‘s Bowman admitted to the authenticity of Boswell’s post-conviction hearing, Bowman of

the records which formed the basis of the impeachment/bias evidence even as he

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. ofTexas v. The State of

Brief of Appellant 26 records. (R.R. tried to offer mitigation of his actions the subject of those disciplinary records.

was also established in the hearing that the prosecution, 14-15). It was 9, pp. 14-15). however prosecution, however

(RR. impeachment/bias materials to the defense. (R.R. inadvertently, did not provide the impeachment/bias

9, pp. 40-41).

Brady Brady and its progeny such as Giglio require the state to disclose all material

evidence that could exculpate the defendant, including evidence that could be used

impeach any of the prosecution witnesses or undermine the prosecution‘s to impeach prosecution’s case. case.

Those requirements are so well established that it Those it should have controlled the post-

conviction court‘s court’s ruling on Boswell‘s Boswell’s motion. Here, the records attached to to

Boswell‘s Boswell’s motion for new trial Bowman’s personnel trial consisted of documents from Bowman‘s

them prior to trial, he could have used to establish file which, had Boswell receive them

bias on Bowman’s part Bowman‘s part in in testifying testifying for the State. State. Boswell showed, for example,

that that Bowman‘s Bowman Bowman’s curriculum vitae referenced a number of prior occasions Bowman

Bowman’s trial testimony in this case would had testified in gang-related cases; that Bowman‘s would

Bowman was pad that accomplishment, and, most importantly for showing bias, that Bowman was

using that curriculum vitae to promote promote himself within the law enforcement field in

efforts to land another job in law enforcement. enforcement. (R.R. 9, pp. With regard to pp. 26-28). With

bias, a witness‘s bias, witness’s interest interest or motive to to testify testify is is a critical critical area of inquiry on cross-

examination. Davis examination. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 1105, 39 L.Ed.2d 347 (1974).

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 27 Bowman’s The records themselves included materials that undermined Bowman‘s

veracity under oath because the disciplinary actions centered on misstatements of

made to his superiors before his forced resignation. (R.R. 9, pp. 22- fact that he had made

Supreme Court has noted impeachment evidence, the United States Supreme 23). Concerning impeachment

that, that, ―[t]he jury‘s estimate of the truthfulness and reliability “[t]he jury’s reliability of may of a given witness may

upon such subtle factors as the of guilt or innocence, and it is upon well be determinative of

possible interest interest of of the witness in in testifying testifying falsely falsely that that a defendant‘s defendant’s life life or liberty

depend.” Napue may depend.‖ may Napue v. Illinois, Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1217 1173, 3 L.Ed.2d 1217

(1959).

The key issue here is is whether the evidence the subject of of Boswell‘s Boswell’s motion

new trial was for new was ―material,‖ “material,” (i.e., when viewed in light (i. e., prejudicial to the defendant) when

of of the other evidence presented at at trial. trial. Evidence is is deemed material ―only “only if if there

is a reasonable probability that, had the evidence been disclosed to the defense, the

A reasonable probability is a would have been different. A result of the proceeding would

probability sufficient sufficient to to undermine confidence in the outcome.‖ outcome.” United States v.

US The answer 481 (1985). The 105 S. Ct. 3375, 87, 87 L.Ed.2d 481 Bagley, 473 U.S. 667, 672, 105

would probably have to the materiality issue though is not whether the defendant would

received a different verdict with the evidence,…―but evidence,...“but whether in its its absence he

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. ofTexas v. The State of

Brief of Appellant 28 received a fair trial, understood as a trial resulting in a verdict worthy of confidence.‖ confidence.”

Kyles v. Whitley, 115 S. Ct. 1555, Whitley, 514 U.S. 419, 434, 115 490 (1995). 131 L.Ed.2d 490 1555, 131

Evidence of Boswell‘s Boswell’s actual involvement in the robbery came only from

who each had accomplices who One witness, had a motive to testify favorably for the State. One

Paul Sterling, “ordered” the robbery, but Sterling never Sterling, claimed that Boswell had ―ordered‖

made that assertion in the initial statement he gave to police following his arrest. made arrest. (R.

had still not been R. 5, p. 82). Further, at time of trial, Sterling had been charged with any

had refused to participate in the robbery. (R.R. offense because, according to him, he had

Danny Carruth, a participant in the robbery, also testified 5, pp. 64, 68). Danny testified that Boswell

was the G.D.‘s G.D.’s leader who told him to to watch by by the door as three other robbers

entered Arrington‘s Arrington’s house to to rob him. (R.R. 5, 5, pp. 140, 140, 143). 143). Notably, despite his

admitted participation Brandon’s death, Carruth had not participation in the robbery resulting in Brandon‘s

murder at time of trial, and he admitted that he was been indicted for capital murder “hoping was ―hoping

to to keep it it that way.” (R.R. 5, that way.‖ 5, p. p. 154). 154). The last last witness for the State, State, the icing on the

State‘s State’s cake as as it it were, was Bowman, the State‘s State’s gang expert. It Bowman who It was Bowman

provided a detailed analysis of the Gangster Disciples through the years, their

gang signs and tattoos corporate structure, their criminal activities, their extensive gang

damaging evidence as introduced in trial, a description of the G.D.s and, perhaps as damaging

as the most gang in Killeen‘s most extensive criminal gang Killeen’s history. (R.R. 6, pp. 35, 58).

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 29 Moreover, it Bowman whose was Bowman it was whose testimony bolstered that of members of the two gang members

who whose interest and bias in favor of who testified and whose of the State was shown during was shown

cross-examination. members’ testimony was crucial to proof of cross-examination. Those gang members‘ of

Boswell‘s Boswell’s status status as as leader of the G.D. gang and of of his involvement in in the planning

As a result, any evidence from any source that tended to corroborate of the robbery. As of

or to bolster their testimony became crucial to to the outcome of of the State‘s State’s case. case.

Bowman’s testimony did not merely serve to provide insight into the gang‘s Finally, Bowman‘s gang’s

it also provided information to the jury different in kind to that of the activities, it

State‘s State’s other witnesses because it it served to members’ allegations to buttress gang members‘

against Boswell and to to undermine the latter‘s latter’s attempts to to prove that the witnesses‘ witnesses’

him gave self-serving and biased testimony. against him

Johnson v. In the case of Johnson v. Mills, 592 F.3d 730 (2010), the court noted that

jurors often have a negative predisposition toward informants. informants. ―Ordinary “Ordinary decent

who ‗sell people are predisposed to dislike, distrust, and frequently despise criminals who ‘sell

out‘ out’ and become prosecution witnesses. Jurors suspect their their motives from the

moment they hear about them moment them in a case, and they frequently disregard their testimony

altogether as highly untrustworthy and unreliable....‖ unreliable...” Id. Id. citing Stephen S. Troft,

Words of Words Warning for of Warning Using Criminals as Witnesses, for Prosecutors Using Witnesses, 47 Hastings, L.J.

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 30 1391, 1395 1391, made 1395 (1966). In light of that, any evidence supporting such testimony is made

more material. the more material.

In a case involving the exclusion of evidence of an officer‘s officer’s disciplinary

record, In the Matter of C.F.C., the Court of Appeals held that exclusion of such Matter of

was not error. 1999 evidence in that case was WL 675440, Tex. App. —– San Antonio, 1999 WL

1999 (not designated for August 31, 1999 for publication). publication). There, defense counsel learned

had been reprimanded by during trial that a police officer had by his department. Counsel

was admissible to impeach argued that the reprimand was impeach the officer and that the

reprimand demonstrated bias and a motive to to fabricate portions of the officer‘s off1cer’s

The appeals court disagreed, but it testimony. The it did so only after it it determined that

which might of the incidents the subject of the reprimand which the probative value of

establish bias or a motive to fabricate testimony was marginal. It reached that was marginal.

conclusion because the incidents that led to the reprimands had, in fact, occurred

after the offense the subject of its current trial. Thus, in that case, the court reasoned

was not that whether the officer had been disciplined for violating police procedures was

relevant to a motive for lying in the case before it. The relevance, the materiality of it. The of

impeachment/bias evidence was, he court reasoned, at best only theoretical. the impeachment/bias

WL 675440 at *5. C.F.C., 1999 WL 675440 *5.

Cause No. 03-l5-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 31 31 980 S.W.2d In Saldivar v. State, 980 App. — S.W.2d 475 (Tex. App. – Houston Houston [14 th [l4“‘ 1998, Dist.] 1998,

in a case where where defendant discovered an undisclosed conviction for a state‘s state’s witness,

was of prior convictions was the court of appeals again found that undisclosed evidence of

The appellate court reached that conclusion, impeachment purposes. The immaterial for impeachment

however, only after it was able to accomplish his goal to it determined that defendant was

impeach the witness‘ impeach witness’ credibility by by using her prior inconsistent statements in lieu of

of her convictions. evidence of

The of Appeals, in DeLe0n The Third Court of WL 3454101 DeLeon v. State, 2015 WL 3454101 (Tex.

App. — May 29, 2015 – Austin, May November 18, 2015 (petition for discretionary review November 2015 18, 2015

(not designated for for publication)), publication)), found that the relevance for bias in the case before

it it was ―not “not plainly apparent.‖ apparent.” There, the court found that that the State‘s State’s motivation for

disclosing a recording to law enforcement did not have an effect effect on the jury’s jury‘s

consideration. Apparently, the court reached that conclusion at least in part because, consideration.

was able to challenge the witness‘ as its opinion noted, appellant was witness’ credibility in other

ways.

Finally, in Milke Milke v. Ryan, 711 F.3d 998 (2013), the United States Ninth Ryan, 711

prosecutor‘s failure to disclose a key testifying Circuit Court of Appeals held that the prosecutor’s

detective‘s “long history of lies detective’s ―long lies and misconduct‖ misconduct” violated appellant‘s appellant’s due process

rights and reversed and remanded new trial. In that case, which remanded for new which noted inadvertent

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 32 enough for a Brady failure to disclose is enough Violation (citing Kyles as well as Strickler Brady violation

v. 119 S. Ct. 1936, v. Green, 527 U.S. 263, 119 1936, 144 287 (1999), the Court 144 L.Ed.2d 287

find that the jury would reiterated that it is not necessary to find come out would have come

differently. differently. It It suffices, suffices, the Court wrote, that that there is is a ―reasonable “reasonable probability of a

different result.‖ result.” Id.

Where the State apparently deemed Where deemed testimony about the Gangster Disciples

sufficiently worthwhile that it good deal of time in trial developing the it spent a good

Bowman was where Bowman evidence, and where was the sole source of most of that damning damning evidence,

As a result, the conclusion more apparent. As the materiality of his testimony is even more

cannot be reached beyond a reasonable doubt that the erroneous exclusion of the

evidence did not necessarily contribute to to Boswell‘s Boswell’s conviction; rather, rather, the

of the admitted Brady evidentiary suppression of confidence in Brady material undermines confidence

the outcome of Boswell‘s Boswell’s trial.

PRAYER 13. PRAYER

WHEREFORE, Larry Donnell Boswell, Jr. prays that this honorable court WHEREFORE,

remand this cause for retrial in accordance with its findings reverse and remand findings herein and

may justly be entitled. which he may for such other and further relief to which

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 33 COPELAND LAW COPELAND LAW FIRM FIRM Box 399 P.O. Box TX 78613 Cedar Park, TX 78613 Phone: 512.897.8196 Phone: Fax: 512.215.8114 ecopeland63@yahoo.com Email: ecopeland63@yahoo.com Email:

By: /s/ Erika Copeland By: Erika Copeland State Bar No. 16075250 No. 16075250 Attorney for Appellant

CERTIFICATE OF CERTIFICATE SERVICE AND OF SERVICE OF AND OF COMPLIANCE WITH RULE COMPLIANCE WITH RULE 9 December 14, This is to certify that on December copy of the 14, 2015, a true and correct copy Bob Odom, was served on Bob document was above and foregoing document Odom, Assistant District Attorney of Bell County, P.O. BoxBox 540, Belton, Texas 76513, in accordance with the Texas Rules of Appellate Procedure, and that the Brief of Appellant is in compliance with Rule 9 of the Texas Rules of of Appellate Procedure and that portion which which must be included under Rule 9.4(i)(1) contains 7202 words. words.

/s/ Erika Copeland Erika Copeland

Cause No. 03-15-00540-CR No. 03-15-00540-CR Larry Donnell Boswell, Boswell, Jr. Jr. v. The State of v. The ofTexas Brief of Appellant 34