ACCEPTED 05-17-01300-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 6/7/2018 5:41 PM LISA MATZ CLERK
NO. 05-17-01300-CR IN THE COURT OF APEALS FILED IN 5th COURT OF APPEALS FOR THE 5TH SUPREME DALLAS, TEXAS JUDICIAL DISTRICT 6/7/2018 5:41:30 PM OF TEXAS AT LISA MATZ DALLAS Clerk
OBED ISAU ZAVALA, APPELLANT
V. THE STATE OF TEXAS, APPELLEE
Appealed from the 291ST Judicial District Court Dallas County, Texas Cause No. F15-35052-U BRIEF FOR APPELLANT NO ORAL ARGUMENT REQUESTED
Sharita Blacknall 3131 McKinney Ave. Suite 600 Dallas, Texas 75204 E:info@blacknallfirm.com T: 214-678-9111 F:214-678-9144 Attorney for Appellant
i OBED ISAU ZAVALA, APPELLANT
TO THE COURTS OF APPEALS: OBED ISAU ZAVALA, APPELLANT HEREIN, RESPECTFULLY SUBMITS THIS BRIEF IN THE ABOVE STYLED AND NUMBERED CAUSE. APPELLANT PRESENTLY STANDS CONVICTED IN CAUSE NO. F15-35052-U OF THE OFFENSE OF AGGRAVATED ROBBERY, A FIRST DEGREE FELONY, IN THE 291ST JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS, THE HONORABLE STEPHANIE MITCHELL PRESIDING. APPELLANT PRESENTS ONE ISSUE FOR REVIEW.
ii TABLE OF CONTENTS
IDENTITY OF PARTIES…………………………………………..….….....iv TABLE OF CONTENTS…………………………………………………….iii
INDEX OF AUTHORITIES…………………………………………..…….vi
STATEMENT OF THE CASE………………………………………………1
ISSUES PRESENTED………………………………………………………..2
ISSUE ONE:
I. The Court Erred When It Allowed Complainant To Plead the Fifth In The Middle Of His Testimony Because By Testifying Complainant Waived His Fifth Amendment Privilege. STATEMENT OF FACTS ..................................................................... …..3
SUMMARY OF ARGUMENT. ............................................................. ....18
ARGUMENT ........................................................................................... ….19
CONCLUSION AND PRAYER ........................................................... …..21
CERTIFICATE OF COMPLIANCE…………………………………….23
CERTIFICATE OF SERVICE……………………………………………24
iii IDENTITY OF PARTIES
Ms. Jessica Trevizo SBOT NO. 24073105 Mr. Herschel Woods SBOT NO. 24048899 DALLAS COUNTY DISTRICT ATTORNEY'S OFFICE 133 N. Riverfront Boulevard, Lb 19 Dallas, Texas 750207 PHONE: (214) 653-3600 Attorney for State of Texas-Jury Trial
MR. HERSCHEL WOODS Assistant District Attorney DALLAS COUNTY DISTRICT ATTORNEY'S OFFICE SBOT NO. 24088516 133 North Riverfront Boulevard, LB 19 Dallas, Texas 75207 PHONE: (214) 653-3600 Attorney for State of Texas-Jury Trial
MR. MICHAEL SNIPES Assistant District Attorney DALLAS COUNTY DISTRICT ATTORNEY'S OFFICE SBOT NO. 18797900 133 North Riverfront Boulevard, LB 19 Dallas, Texas 75207 (214) 653-3600 Attorney for State-Punishment Phase
Mr. Thomas Cox THE LAW OFFICE OF THOMAS R. COX III SBOT NO. 04956487 2603 Oak Lawn Avenue, Suite 230 Dallas, Texas 75219 PHONE: (214) 526-5600 Attorney for Defendant-Jury Trial
iv MR. TYLER CARLETON Attorney at Law THE LAW OFFICE OF TYLER CARLETON SBOT NO. 24076088 3131 McKinney Avenue, Suite 600 Dallas, Texas 75204 (214) 649-4605 Attorney for Defendant-Jury Trial
MR. OBED ISAU ZAVALA TDC# 02170112 County Bench Warrant No Unit Assigned DEFENDANT/APPELLANT
MS. SHARITA BLACKNALL SBOT NO. 24038768 3131 McKinney Ave., Suite 600 Dallas, Texas 75204 Telephone: (972) 383-9716 FOR THE APPELLANT
v INDEX OF AUTHORITIES
Cases
Draper v. State, 596 S.W.2d 855, 857 (Tex. Crim. App. 1980)………………..21
Taylor v. Illinois, 484 U.S. 400, 409, 108 S. Ct. 646, 653, 98 L. Ed.2d 798 (1988)……………………………………………………………………………21
Statutes, Codes, Rules, Constitutions
Tex. Penal Code 29.03………………………………………………………..…..3
TEX. R. APP. P. 44.2(a)…………………………………………………….…...20
Sixth Amendment U.S. Constitution…………………………………………….21
Fourteenth Amendment U.S. Constitution………………………………………21
Art. I, sec. 10, of the Texas constitution…………………………………………21
vi STATEMENT OF THE CASE No. 05-17-01300-CR Trial Cause No. F15-35052-U
THE CHARGE Aggravated Robbery
THE PLEA Not Guilty
THE VERDICT Guilty
PUNISHMENT 15 YRS TDCJ-ID and No Fine
1 ISSUE PRESENTED
ISSUE NUMBER ONE:
THE COURT ERRED WHEN IT ALLOWED COMPLAINANT TO PLEAD THE FIFTH IN THE MIDDLE OF HIS TESTIMONY BECAUSE BY TESTIFYING COMPLAINANT WAIVED HIS FIFTH AMENDMENT PRIVILEGE.
2 STATEMENT OF FACTS
Appellant was indicted for aggravated robbery, in Cause No. F15-35052-U, a
first-degree felony alleged to have occurred on December 5, 2015, under Tex. Penal
Code 29.03. (CR1, 13). He pleaded not guilty to the charge and was tried by a jury
on October 24, 2017 in the 291st Judicial District Court of Dallas County. (RR2, 4).
The jury found him guilty and on October 26, 2017 the court sentenced him to fifteen
years confinement in the Texas Department of Criminal Justice Institutional
Division with a fine of $0. (CR1, 88; RR4, 223 ).
Appellant timely filed a notice of appeal on October 26, 2017. (CR1, 92).
Both sides gave opening arguments. Then testimony began. (RR3, 13-19).
The State called the Complainant. The complaining witness in this case is
JOSHUA KARAMVELLIL. At the time of the offense, he was 22 years old. He
was living with his mother and he was selling marijuana. (RR3, 44-45). He testified
that he met Appellant through a mutual acquaintance who introduced them because
Complainant was looking to sell a large amount of marijuana and the mutual
acquaintance knew Appellant as someone who bought large quantities of marijuana.
(RR3, 45-46).
Appellant and Complainant met at Complainant’s house on that date of the
offense at about 1:00 p.m. or 2:00 p.m., but no later than 5:00 p.m. (RR3, 47). When
3 they met Appellant asked Complainant whether he had any guns and Complainant
told him that he did. (RR3, 46). However, Complainant testified that he really did
not have guns and just said that so he did not appear to be a “pussy.” (RR3, 46).
During this initial meeting Appellant and complainant agreed on a price. They also
agreed to meet again at 11:00 p.m. that day because Complainant did not have the
marijuana at that time. (RR3, 47, 49). After this initial meeting Complainant left to
go run errands. (RR3, 47).
When Complainant returned home from running errands his mother was
home. (RR3, 49). She was in her room asleep. (RR3, 51).
Complainant’s former co-worker, Kevin Guerrero, was at Complainant’s
home. He came over to listen to music. (RR3, 52).
Appellant and Jaime Gutierrez arrived shortly after Kevin. (RR3, 53).
Complainant went outside to talk to Appellant. Complainant told Appellant that he
could not come in the house with Jaime. Appellant left to go drop Jaime off.
Appellant came back about 3 minutes later. (RR3, 54).
Complainant and Appellant go in the house and sit down at the table.
Complainant begins to roll a blunt so that Appellant can try the marijuana. Appellant
begins to count the money he brought to purchase the marijuana. But, Complainant
4 notices that it looks like it is less than the amount agreed upon. Then, Appellant
announces that he is going to the car to get some more money. (RR3, 54-55).
Less than 10 seconds after Appellant walks out the door, someone named
Colton Price, Jaime Gutierrez, and Appellant walk back in. Colton and Jaime both
had on ski masks and had weapons. The weapons were pointed at both Complainant
and Kevin. (RR3, 56).
Appellant instructs Colton and Jaime to tie Complainant and Kevin up.
Colton and Jaime tie up Kevin and Complainant using duct tape. (RR3, 57-58).
Appellant, Colton and Jaime then went around the house taking items that
belonged to Complainant. The items were placed in duffel bags that belonged to
Complainant. The items taken included: phones, tablets, fake Rolex watches, and
money. (RR3, 59-60).
Appellant, Colton and Jaime left the house and then a few seconds later ran
back in because the police were coming. (RR3, 62-63).
Upon arrival, the police secure the house and remove Complainant’s mother
from the house. (RR3, 63).
Complainant is then taken down to the Irving Police Department to give a
statement. (RR3, 63).
5 While making his statement to the detective, Complainant told the detective
that Appellant was selling drugs to him. (RR3, 77). Complainant later told the
detective and prosecutor that he made that up and that he was actually selling
marijuana to Appellant. (RR3, 77).
During his testimony Complainant discussed his criminal history. He testified
that at the time of his testimony he had a pending assault charge, was currently on
probation for possession of marijuana, and shortly before the robbery he was charged
with 2 counts of DWI. (RR3, 48-49).
The Defense cross-examined Complainant. During cross examination
Complainant stated that he agreed to sell 10 pounds of marijuana to Appellant. (RR3,
87). Appellant and Complainant agreed on a price of $20,000. (RR3, 88).
Complainant stated he had less than 1 pound of marijuana despite telling Appellant
he would sell him 10 pounds. (RR3, 87). The Defense advanced the theory that
Complainant was intending to steal the $20,000 from Appellant and never intended
to sell Appellant 10 pounds of marijuana. (RR3, 93).
The State called Complainant’s mother, Saly Karamvellil. She stated that she
was home asleep on the night of the offense. She was awakened by a loud noise.
She looked out her window to see what it was. She saw 2 masked men with guns
pointed at her son. She then went to her bathroom and called 9-1-1. (RR3, 21-22).
6 Then Appellant opened the bathroom door. He turned the light on, looked at Saly,
then turned the light off, and closed the door without saying anything. (RR3, 23-
24).
After police arrived, Saly came out of the bathroom. She saw Kevin and her
son tied up with the duct tape. (RR3, 25). She then ran outside through the front
door where she saw the police. (RR3, 25).
The Defense cross-examined the witness.
The State called Kevin Guerrero. He and Complainant were co-workers at
McDonalds. (RR3, 132). On the day of the offense he went to Complainant’s house
to work on a music project. (RR3, 133).
Kevin testified that when he got to Joshua’s the guys that robbed them were
already in the house. He stated that the guys left and came back a couple minutes
later. When they came back they pointed guns at him. (RR3, 134, 137). Two of the
guys had on masks. (RR3, 138). The two guys with the masks tied up Kevin and
Joshua. Then, they ransacked the house and robbed them. (RR3, 138).
Kevin stated that Joshua never had a gun. (RR3, 138).
The Defense cross-examined Kevin.
7 The State called Detective Chad Valline. On the day of the offense he was on
patrol when he received a call for a robbery in progress. (RR3, 154). He was the
first officer to arrive. He parked his car at the end of the street and walked down to
the scene. (RR3, 155). He waited for backup. Officer Byrd and Officer Wojcik
came to assist. (RR3, 156).
Two individuals with guns ran out of the house. Detective Valline told them
to drop their guns. (RR3, 156). The two individuals dropped their guns and the bags
they had in their hands. (RR3, 156).
The officers then went inside the house. Once inside they noticed that 2
individuals ran out the back door. (RR3, 157).
They secured the house. Then had Saly, Kevin and Joshua complete written
statements. (RR3, 160).
Detective Valline then had the victims cell phones pinged in hopes that the
suspects had the phones on their bodies and could be located. (RR3, 161).
About 30 minutes after the suspects ran out the back door, Detective Valline
heard gunshots. (RR3, 162).
The Defense cross examined the witness.
8 The State called Detective Kyle Fleischer. He was dispatched to the scene the
day of the offense to take possession of the narcotics. (RR3, 166).
The State called Lieutenant Chris Watkins. He was the supervisor on duty
the day of the offense. (RR3, 174). He heard the call on the radio and went to the
scene. (RR3, 175).
Upon arrival he grabbed his shotgun. He heard noises in the adjacent yard, so
he went to clear it. (RR3, 175-176).
He noticed that the suspects were running in different directions, so they used
more officers than usual. (RR3, 176).
He became aware that the helicopter and the K9 unit were in route. So, he
and the other officers began clearing the yards in the neighborhood. (RR3, 177).
At some point one of the victims’ phones was pinged. The helicopter went to
the location and identified two suspects huddled against a wall in one of the back
yards. (RR3, 181). The suspects took off running over fences. Lieutenant Watkins
grabbed one of the suspects as he was climbing over the fence. The suspect was shot
by officers on the other side of the fence. (RR3, 182). The other suspect hid under
a porch. (RR3, 182). The SWAT team came out and this was the end of Lieutenant
Watkins involvement. (RR3, 185). 9 The Defense cross-examined the witness.
The State called Sergeant Ed Vanderveen. He heard the call on the radio for
a robbery in progress and went to the scene. (RR3, 195). When he arrived, he rallied
the officers to set up a perimeter, he called for K9, and a helicopter. He then turned
the team over to another sergeant. (RR3, 196).
The State called Officer Conrad Trezza. On the date of the offense he was a
full time SWAT officer. (RR3, 208). When he arrived, he saw a suspect under a
deck. He sent a robot in to get a response from him. The robot was unable to get a
response.(RR3, 211). So, they started shooting foam bullets at the suspect to try to
get a response. (RR3, 212). The suspect eventually crawled out after being hit. (RR3,
213).
The Defense did not cross-examine this witness.
The State called Juan Cervantes. He is an investigator with Dallas County
District Attorney’s Office. (RR3, 215). He photographed the Defendants tattoos
prior to trial. (RR3, 216). The State moved to admit the photo of the tattoo. The
Defense objected during pre-trial and the Judge noted that objection. The Court
admitted the photo. (RR3, 216-217, SX258). He stated that the tattoo was the words
“Texas Crook.”
10 The Defense did not cross-examine this witness.
The State called Saben Emery, a state trooper in the aircraft operations
division. (RR3, 218-219). On the day of the offense he was the passenger in the
helicopter that was attempting to locate the suspects. He was operating a camera
with a thermal laser. (RR3, 221-222). He recorded the capturing of one of the
suspects and the officer involved shooting of the other suspect. (RR3, 223). The
video was admitted without objection. (RR3, 225, SX2).
The State called Officer Eric Gustafson. He was on patrol the day of the
offense. (RR4, 16). He responded to the robbery in progress information he heard
on the radio. (RR4, 17). He was one of the officers that located the suspects in one
of the backyards. (RR4, 17). One of the suspects emerged from the northwest corner
of one of the houses. The suspect started shooting at Officer Gustafson and the other
officers he was with. (RR4, 22). Officer Gustafson also participated in the arrest of
Jaime Gutierrez, who was under the porch. (RR4, 25).
The State called Brett Behrends. He is a crime scene investigator for Irving
Police Department. (RR4, 27). He was called out to the scene to take photographs
the day of the offense. (RR4, 28).
11 The Defense cross examined this witness.
The State called Officer Vance Barnes. He is an investigator with the Irving
Police Department. (RR4, 47). He was the first crime scene investigator to arrive.
(RR4, 48). He located several pieces of evidence including the duct tape, masks,
and marijuana. He photographed and documented everything. (RR4, 48).
The Defense cross-examined this witness.
The State called Detective John Schingle with the Irving Police Department.
(RR4, 58). When he arrived on the scene the suspects were already in custody and
one suspect was deceased. (RR4, 59-60). He assisted with processing the officers
involved in the shootings. (RR4, 61). He also made the decision not to test the guns
found at the scene because he was told the suspects wore gloves. (RR4, 63). He sent
the ski masks for testing. (RR4, 64). The DNA results came back to Colton and
Jaime. (RR4, 66). The duct tape was not tested. Det. Schingle that it unnecessary
since the suspects wore gloves. (RR4, 67). Det. Schingle conducted a lineup for
Joshua and Kevin. All three suspects were positively identified. (RR4, 67). He
interviewed Appellant but was unable to obtain any pertinent information. (RR4,
68). Det. Schingle pulled Appellant’s jail calls. (RR4, 77-78). During the jail calls
Appellant discussed the fact that the day of the offense he stashed the guns that he
and the other suspects possessed. (RR4, 81).
12 The Defense cross examined this witness.
The State rested. (RR4, 85).
A hearing was held outside the presence of the jury regarding which of
Defendant’s prior criminal history would be admitted. The Court ruled that the State
would only be able to impeach Defendant with a burglary of a habitation conviction
that was on his record. (RR4, 91).
The Defendant was admonished regarding his right to testify. He declined to
testify. (RR4, 91).
The Defense called Complainant. (RR4, 96). He testified that at the time of
his testimony in this case he was on probation for possession of marijuana and
driving while intoxicated in Denton County.(RR4, 96). He stated that at the time of
his testimony he had an assault charge, interference with an emergency call and
DWI pending. (RR4, 97). He testified that the marijuana stolen by Appellant from
him belonged to him. (RR4, 97-98).
The State did not cross-examine this witness.
The Defense rested. (RR4, 100).
A charge conference was held and there were no objections. (RR4, 100).
The State gave closing argument. (RR4, 109).
13 The Defense gave closing argument. (RR4, 116).
The jury came back with a guilty verdict. (RR4, 133).
The jury was released, and the punishment phase began. (RR4, 136).
The State called Sergeant Royce Gastineau with the Decatur Police
Department. (RR4, 137). On the night of November 14, 2014, he was a patrolman.
He was dispatched to an apartment complex. It was alleged that there was a
disturbance, and someone had been pistol whipped and robbed. (RR4, 139). Upon
arrival he noticed people sitting in a red Yukon. (RR4, 142). Appellant was in the
vehicle. Officer Gastineau mirandized him. (RR4, 143). He denied being involved
in the robbery. (RR4, 145). Appellant was not arrested for robbery. (RR4, 147). The
passenger Christian Arroyo was arrested. (RR4, 147).
The State called Officer Rodney Flake with the Decatur Police Department.
(RR4, 149-150). He testified that he was called out to the same scene as Officer
Gastineau and that they arrested Mr. Arroyo. (RR4, 149-154).
The State called Darren Hodge, an investigator with the Dallas County
District Attorneys Office. (RR4, 156). It was stipulated that he is a fingerprint
14 expert. (RR4, 157). He compared Appellant’s fingerprints to those in prior
judgments. (RR4, 159-165).
The State called Officer Joe Bradford with the Irving Police Department. On
April 25, 2015 he responded to a call that someone was driving erratically. (RR4,
169). He came across a car driven by Appellant. A car chase ensued through a
neighborhood. (RR4, 171). Appellant’s vehicle wrecked out several times and
crashed into a tree and vehicle. (RR4, 172). Appellant was arrested for felony
evading arrest. (RR4, 174).
The State called Officer Ryan Turner with the Irving Police Department.
(RR4, 176). He was one of the officers that responded to the call on April 25, 2015
with Officer Bradford. He hurt his hand and had to go to the hospital as a result of
punching Appellant in the face as he was attempting to arrest him. (RR4, 178-180).
The State called Officer Jared Sykes with the Irving Police Department. (RR4,
181). He was one of the officers called out to the evading arrest charge on April 25,
2015. (RR4, 182).
15 The Defense did not cross-examine this witness.
The State rested. (RR4, 183).
The Defendant was admonished regarding his right to testify. (RR4, 184). The
Defendant decided to testify. (RR4, 185).
The Defense called Defendant, Obed Zavala. (RR4, 186). He testified that he
is 28 years old, he has his GED, and a certificate for Diesel Technician from Lincoln
Tech. He stated that he is also a tattoo artist. (RR4, 188).
He testified that the tattoo “Texas Crook” signifies the name of a record label
that he and some friends were attempting to start. (RR4, 189).
He testified that he met Joshua through a mutual friend. (RR4, 191). He stated
that he and Joshua made an agreement that Joshua would sell him 10 pounds of
marijuana. (RR4, 191). Joshua never told him that he only had 1 pound of marijuana.
(RR4, 192). He stated that he brought $20,000 to the meeting at Joshua’s house on
the date of the offense. (RR4, 192). When he arrived Joshua and Kevin were present.
(RR4, 192). Joshua told him he only had 1 pound but could go get the rest. So,
Appellant left to go eat dinner and came back. (RR4, 192-193).
When Appellant came back Joshua only had 1 pound. So, he handed him the
money for the 1 pound when Joshua pulled a gun on him. (RR4, 193). Appellant
grabbed the gun and Colton hit Joshua. (RR4, 193). Appellant handed the gun to 16 Colton after taking it away from Joshua. (RR4, 194). They then tied Kevin and
Joshua up with duct tape. Appellant did not wear a mask. (RR4, 194). Appellant
saw the police when he was leaving . (RR4, 194).
The State cross-examined the witness.
The Defense called Valerie Zavala, Appellant’s sister. (RR4, 207). She
testified that Appellant is a good brother who has always been there for her. She also
stated that Appellant had a baby on the way that he needed to be there for. (RR4,
208-209).
The State did not cross-examine the witness.
The Defense called Leslie Garza, the mother of Appellant’s unborn child.
(RR4, 210-211). She testified that Appellant is a good person. She stated that she
did not want to raise her baby by herself. (RR4, 211-212).
The Defense rested. (RR4, 214).
Both sides closed. (RR4, 214).
Both sides gave closing argument. (RR4, 215-222).
The Court sentenced Appellant to 15 years TDC. (RR4, 223).
17 SUMMARY OF ARGUMENT
The Court erred when it allowed Complainant to invoke his Fifth Amendment
privilege after he had waived it by testifying.
18 ARGUMENT
I. THE COURT ERRED WHEN IT ALLOWED COMPLAINANT TO PLEAD THE FIFTH IN THE MIDDLE OF HIS TESTIMONY BECAUSE BY TESTIFYING COMPLAINANT WAIVED HIS FIFTH AMENDMENT PRIVILEGE.
The State called Joshua KARAMVELLIL, Complainant as a witness.
During direct examination Complainant gave complete testimony regarding his
version of the facts. (RR3, 44-81). The State asked Complainant whether he had a
pending assault charge. Complainant responded that he did. (RR3, 48). During
cross-examination the Defense asked Complainant questions regarding his criminal
history. Specifically, Complainant was asked about the pending assault charge.
During his testimony he admitted that he had an assault charge pending. (RR3, 97).
However, when he was asked about the details of the assault the State objected and
the Court sustained the objection. (RR3, 97-98). The State also asked the Court to
instruct the jury to disregard the question and the Court so instructed. (RR3, 98-
99).
A hearing was held outside the jury’s presence regarding eliciting
testimony of Complainant’s pending assault. The Defense proffered what it would
ask Complainant. The Defense further stated that Complainant gave unsolicited
testimony that he was not a violent person and therefore his pending assault,
19 interference with an emergency call, and deadly conduct cases were relevant.
(RR3, 101-103). The Court ruled that the Defense was not allowed to go into the
underlying details of the charges, but could ask whether the charges were pending.
(RR3, 105).
Following a lunch break, the Court announced that it was reversing its
earlier ruling and would allow the Defense to ask about the underlying facts of
Complainant’s pending assault and deadly conduct charges. (RR3, 122). The Court
also announced that it had appointed Complainant an attorney to advise him
regarding his testimony. (RR3, 123). That attorney announced that Complainant
would no longer continue to testify and was invoking his Fifth Amendment
privilege not to incriminate himself. (RR3, 123).
The Defense asked the Court for permission to ask Complainant some
questions outside the presence of the jury. The Court allowed it. During
questioning Complainant responded by invoking the Fifth Amendment. (RR3, 124-
125).
Appellant contends that the Court erred by allowing complainant to plead
the Fifth because by testifying he waived his Fifth Amendment privilege.
When there is a constitutional error the Appellate Court must reverse unless
it is determined beyond a reasonable doubt that the error made no contribution to
the conviction. TEX. R. APP. P. 44.2(a).
20 The Court should have compelled Complainant to testify, instead of
allowing Complainant to claim the privilege he had already waived. Because
Complainant had waived the privilege, Appellant was entitled to present
Complainant’s testimony. See Draper v. State, 596 S.W.2d 855, 857 (Tex. Crim.
App. 1980); see also Taylor v. Illinois, 484 U.S. 400, 409, 108 S. Ct. 646, 653, 98
L. Ed.2d 798 (1988). The trial judge erred by not compelling Complainant to
continue testifying and the error was constitutional. Draper, 596 S.W.2d at 857.
The denial of compulsory process of witnesses is a violation of the Sixth and
Fourteenth Amendments to the United States Constitution and Art. I, sec. 10, of the
Texas constitution.
When there is constitutional error, the appellate court must reverse unless it
determines beyond a reasonable doubt that the error made no contribution to
appellant’s defense. . TEX. R. APP. P. 44.2(a). It cannot be said that the error
was harmless because that testimony was important to appellant’s defense that (1)
Complainant was a violent person (2) Complainant pulled a gun on appellant (3)
Complainant was the one who was attempting to rob Appellant.
CONCLUSION AND PRAYER
Wherefore, premises considered, appellant prays that this honorable
Court will find the evidence insufficient to support the conviction, reverse the 21 conviction and render judgment of acquittal, or take such other and further
actions the Court deems appropriate.
Respectfully Submitted,
/s/Sharita Blacknall Sharita Blacknall Texas Bar No. 24038768 3131 McKinney Ave., Suite 600 Dallas, Texas 75204 Phone: 214-678-9111 Fax: 214-678-9144 ATTORNEY FOR APPELLANT
22 CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
3,790 words based upon the word count function of Microsoft Word 2003, excluding
any parts exempted by Tex. R. App. P. 9.4(i)(1).
/s/Sharita Blacknall Sharita Blacknall
23 CERTIFICATE OF SERVICE
This is to certify that a copy of the above-entitled and numbered appellant's
brief has been served on the District Attorney of Dallas County, by delivery of a true
copy to him/her by mail by a letter properly addressed to the address below/ or / in
person on June 7, 2018 at the:
Dallas County District Attorney’s Office Appellate Division Frank Crowley Courts Building Dallas, Texas 75207 Ph: (214) 653-3600 Fax: (214) 653-5774
cc:
5th District Court of Appeals Dist. Ct. App.