ACCEPTED 01-15-00366-cr FIRST COURT OF APPEALS HOUSTON, TEXAS 11/25/2015 3:22:54 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00366-CR IN THE COURT OF APPEALS FOR THE FIRST APPELLATE FILED IN JUDICIAL DISTRICT OF TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 11/25/2015 3:22:54 PM CHRISTOPHER A. PRINE Clerk _________________________________________________________________
TRACE ROGERS SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
ON APPEAL FROM THE 207TH JUDICIAL DISTRICT COURT OF COMAL COUNTY, TEXAS
Trial Court Cause No. CR2014-093 Honorable Jack Robison, and Don Burgess, Judges Presiding
BRIEF FOR THE APPELLEE
Jennifer A. Tharp Criminal District Attorney
By Laura Burton Bates SBN: 24035014 Assistant Criminal District Attorney 150 N. Seguin Avenue, Suite #307 (830) 221-1300 Fax (830) 608-2008 New Braunfels, Texas 78130 LKBTEXAS@GMAIL.COM Attorney for the State
Oral argument is waived unless requested by the Appellant
i NAMES OF ALL PARTIES Appellant – Trace Rogers Smith Appellee – The State of Texas
Attorneys for the Appellant Mr. Manuel Rodriguez 879 W. Southcross San Antonio, TX 78211 At Trial
Mr. Atanacio Campos 496 S. Castell New Braunfels, TX 78130 On Appeal
Attorneys for the Appellee
Ms. Chari Kelly Assistant Criminal District Attorney Ms. Jacqueline Doyer Assistant Criminal District Attorney COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 For the State at Trial
Ms. Laura Burton Bates Assistant Criminal District Attorney COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 For the State on Appeal
Ms. Jennifer A. Tharp Criminal District Attorney COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130
ii INDEX
Page
I. NAMES OF ALL PARTIES ii
II. INDEX iii
III. LIST OF AUTHORITIES viii
IV. NATURE OF THE CASE 1
V. STATEMENT OF FACTS 3
VI. SUMMARY OF THE ARGUMENT 9
VII. COUNTERPOINTS 10
COUNTERPOINT NO. 1 10 State’s Reply to Appellants’ Point of Error One
NO BRADY VIOLATION OCCURRED FOR LATE DISCLOSURE OF A WITNESS’ PRIOR CONVICTION BECAUSE THE INFORMATION WAS IMMATERIAL, THE PROSECUTION’S CASE AGAINST APPELLANT WAS STRONG, AND THERE IS NO EVIDENCE THAT THE EXISTENCE OF THE PRIOR CONVICTION WOULD HAVE CHANGED THE OUTCOME OF THIS TRIAL. ACCORDINGLY, NO ERROR IS PRESENTED AND APPELLANT’S POINT OF ERROR NUMBER ONE SHOULD BE OVERRULED AND THE JUDGMENT AFFIRMED.
VIII. CONCLUSION AND PRAYER 18
IX. CERTIFICATE OF SERVICE 19
X. CERTIFICATE OF COMPLIANCE 19
iii LIST OF AUTHORITIES
CASE NAME PAGE
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)……….11
Hafdahl v. State, 805 S.W.2d 396, 399 (Tex.Crim.App. 1990)…………….........11
Hall v. State, 283 S.W.3d 137, 171 (Tex.App.—Austin 2009, no pet)……..........13
Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002)……………...….12
Jones v. State, 711 S.W.2d 35, 38 (Tex.Crim.App. 1986)………………………13
Pena v. State, 353 S.W.3d 797, 811 (Tex.Crim.App. 2011)……………………..11
Saldivar v. State, 980 S.W.2d 475, 485 (Tex.App.—Houston [14th Dist.]
1998, pet. ref’d)…………………………………………………………...15
Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App.1992)(en banc)……...11,12
U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)……………...12
U.S. v. Bagley, 473 U.S. 665, 105 S.Ct 3375, 87 L.Ed.2d 481 (1985)…………...12
Webb v. State, 232 S.W.3d 109, 115 (Tex.Crim.App. 2007)………………….12,13
RULES AND STATUTES PAGE
TEX.PEN.CODE §19.03…………………………………………………………….1
TEX.PEN.CODE §20.04…………………………………………………………….1
TEX.PEN.CODE §22.021…………………………………………………………...1
iv TEX.PEN.CODE §29.03…………………………………………………………….1
TEX.PEN.CODE §37.09…………………………………………………………….1
TEX.R.EVID. 609…………………………………………………………………13
v Cause No. 01-15-00366-CR
TRACE ROGERS SMITH §IN THE COURT OF APPEALS § Appellant § § § v. § FOR THE FIRST § § THE STATE OF TEXAS § Appellee §APPELLATE DISTRICT OF TEXAS
ON APPEAL FROM THE 207TH JUDICIAL DISTRICT COURT OF COMAL COUNTY, TEXAS Trial Court Cause No. CR2014-093
To the Honorable Court of Appeals:
NATURE OF THE CASE
Appellant was charged by indictment with one (1) count of Attempted
Capital Murder, one (1) count of Aggravated Kidnapping, one (1) count of
Tampering with Physical Evidence, one (1) count of Aggravated Sexual Assault,
and one (1) count of Aggravated Robbery. (TEX.PEN.CODE §§19.03, 20.04, 37.09,
22.021, and 29.03). (C.R. Vol.1, pp. 9-11). A jury was empaneled on February
23, 2015. See generally, (R.R. Vol. 2). Ultimately, on February 27, 2015, the
Appellant was found guilty by the jury of the counts of Attempted Capital Murder,
Aggravated Kidnapping, Aggravated Robbery, and Tampering with Physical
Evidence; Smith was found not guilty of Aggravated Sexual Assault. (C.R. Vol. 1,
1 pp. 64-76). The punishment phase of the trial commenced immediately following
the pronouncement of the verdict, with the Appellant electing the jury to assess
punishment. Id.
After hearing further evidence from both sides during the punishment phase,
the jury assessed punishment at forty-two years in the Institutional Division of the
Texas Department of Criminal Justice (TDCJ) for the Attempted Capital Murder
and Aggravated Kidnapping convictions, ten years in the Institutional Division of
TDCJ for the Aggravated Robbery conviction, and five years’ imprisonment in the
Institutional Division of TDCJ for the Tampering with Physical Evidence
conviction. (C.R. Vol. 1, pp. 64-76).
2 STATEMENT OF FACTS
On December 8, 2013, Appellant and his co-defendants participated in
tasing, stabbing, hog-tying, and kidnapping Dana Huth, and left her for dead in a
shed on a very cold night. They then proceeded to burn Huth’s personal belongings
she had brought with her.
Dana Huth was romantically involved with a man named Travis Nealon.
(R.R. Vol. 3, pp. 43). Nealon was simultaneously romantically involved with
Heather Richards, who is one of Appellant’s co-defendants in this case. Id. Huth,
Richards, Clint Barkley, Sheena Hopkins, Kayla Lardieri, and the Appellant all
went to “hang out” at Mike Chapin’s house on December 8, 2013, only bringing
her black backpack with her. Id at 50-1. While they were there, Chapin, also
known as “Big Mike,” told Huth that Richards and Lardieri wished to speak with
her in the back bedroom, and sent Huth in to see them. Id at 51. In that back
bedroom, Richards and Lardieri began to scream at Huth and call her names,
accusing her of being a “snitch” and also of having a romantic involvement with
Nealon at the same time Richards was romantically involved with him. Id at 53-4.
They then had Huth remove all her clothes to check her for a “wire.” Id at 54.
Lardieri proceeded to wrap a t-shirt around her hand and inserted her covered hand
into Huth’s vagina to check for a wire. Id at 54-55.
3 Richards then tased Huth and both Richards and Lardieri began stabbing
Huth. (R.R. Vol. 3, pp. 55-6). They stabbed Huth on her right hand, right side, the
back of her neck, inner thighs, and the back of her legs, for a total of eight stab
wounds. Id at 57-8. After they stabbed Huth, they kicked her in the side of her head
and her ribs. Id at 62. Throughout the attack, Hopkins videotaped the entire
incident on her cell phone. Id at 56. Huth was able to get to the bedroom door,
trying to escape, and broke a vase in the hallway. Id at 63. Appellant appeared and
pushed Huth back into the bedroom and told the other girls they needed to “wrap it
up.” Id.
Hopkins sat on Huth while Richards and Lardieri handcuffed Huth’s feet, as
well as handcuffing and shackling Huth’s hands. Id at 63, 65. They proceeded to
“hog-tie” Huth’s hands and feet by using shackles to connect the handcuffs at her
hands and feet. Id at 65. Huth’s hands were taped together, and a gag made from a
tennis ball was inserted into her mouth. Id at 66. She was also blindfolded with an
eye mask. Id. The Appellant carried her to a shed, and Chapin told the group to
make sure they locked the door. Id at 68.
In the shed by herself, Huth was able to release her shackles around her
wrists, and took off her gag and blindfold; she was not able to release the
handcuffs around her feet. Id at 70. While her feet were still shackled, she was able
to climb out a small window that was about six feet off the ground to get out of the
4 shed. Id. She crawled naked along the cold, wet grass until she was able to get to a
neighbor’s house across the street. Id at 72. She crawled up to the front porch and
used her head to knock on the door. Id at 73. No one answered so Huth borrowed a
blanket and crawled into one of the vehicles on the property to get out of the cold.
Id at 74.
A few hours later, Huth heard Richard’s vehicle drive back up to Chapin’s
property; Richard’s SUV had a distinct sound as if it was missing a muffler. Id at
75. Huth heard the others go look in the shed and realize she was missing. Id. Later
the next morning, Huth honked the horn of the vehicle she was in to get the
attention of Mariah Denman, who lived on the property where Huth was hiding. Id
at 139. Denman, after noticing Huth’s condition, called the police and Huth was
flown to University Hospital in San Antonio for medical treatment of her injuries.
Id at 140.
Clint Barkley, a friend of the Appellant, testified at trial that he was at
Chapin’s house on the night of the attack and witnessed Appellant going “in and
out” of that back bedroom repeatedly. (R.R. Vol. 3, pp. 203). He stated it sounded
like a “wrestling match” was going on in that back room and he could hear the
taser going off repeatedly. Id at 202-203. He stated that Appellant was “guarding”
that door behind which the assault was occurring. Id at 207-8. As he was preparing
5 to leave the property, he saw Chapin and the Appellant standing in front of a shed
outside the house. Id at 207.
Michael James, a friend of the Appellant, testified at trial that he had viewed
the video Hopkins made of the attack on Huth. (R.R. Vol. 3, pp. 143, 145-6). He
stated that in the video, he saw Huth get tackled, and Lardieri make a stabbing
“gesture” and then actually stab Huth. Id at 146, 149.
Jerry Stovall, who was also present at Chapin’s house during the attack,
testified at trial that he witnessed Appellant, Huth, Lardieri, and “two other girls”
all go into that back bedroom on that night. (R.R. Vol. 4, pp. 27-8). He stated that
Huth was called into the back bedroom after the others were already in there and
then they were arguing. Id at 28. Stovall left Chapin’s house, but later the same
evening, Appellant and Lardieri came over to Stovall’s house, and Appellant had a
black backpack with him. Id at 29.
Sheena Hopkins, one of Appellant’s codefendants, also testified regarding
the events of the attack. She testified that at Chapin’s house that night, Appellant
called Huth to come to that back bedroom to speak with Lardieri and Richards.
(R.R. Vol. 4, pp. 111). Hopkins echoed the testimony of the other codefendants,
stating that Richards began arguing with Huth and tased her. Id at 113-115. She
also informed the jury that Lardieri told Huth to disrobe, then proceeded to
vaginally check her for a wire, and then stabbed Huth in the leg. Id. Lardieri
6 continued to stab Huth over and over again. Id at 116. Hopkins told the jury that
Appellant came into the back bedroom and told them to wrap it up. Id. Later on,
Hopkins went into the living room to retrieve some handcuffs because Huth kept
breaking through the electrical tape they originally used to bind her wrists. Id at
121. Appellant handed Hopkins the handcuffs from the living room. Id at 122.
Importantly, she testified that Appellant had her video the entire attack, and later,
after she watched the video, she witnessed Appellant holding a gun to Huth’s face
during the attack. Id at 129, 134.
Appellant testified in his defense at trial. He informed the jury that, while at
Chapin’s house that night, he smoked marijuana and methamphetamines. (R.R.
Vol. 5, pp. 186). He, Lardieri, Hopkins, and Richards all went into the back
bedroom to continue smoking methamphetamines. Id at 189. Appellant left the
back bedroom and told Dana the other girls wanted her to go back to that bedroom
to be with them. Id. At some point, Appellant heard things getting “physical” in
that room. Id at 194. Lardieri came out and told Appellant that Huth was “bleeding
out.” Id at 195. Appellant stated Chapin asked if they wanted to take Huth to a pig
farm.” Id at 197. Appellant, seeing Huth bleeding, shackled, and handcuffed, tied
her “into the sheet” and carried her out to the shed. Id at 199-200. After Appellant
and Lardieri left Chapin’s house, Appellant burned Huth’s backpack, with all her
7 belongings inside so no one would find Huth’s belongings and they wouldn’t get
caught. Id at 230.
The gag and blindfold, as well as the black eye mask, were recovered at the
scene, and still had Huth’s hair attached. (R.R. Vol. 3, pp. 165, 166. ) The State
admitted 276 exhibits during its case in chief, ranging from photos of Huth’s
injuries and her medical records, to photos of the blood droplets that show the path
Huth crawled from the shed to the neighbor across the street, to the burnt remains
of her backpack that Appellant had burned after the attack. See generally, (R.R.
Vol. 3-4).
8 SUMMARY OF THE ARGUMENT
The Appellant has presented one (1) point of error for the Court’s review.
The State maintains that its failure to disclose a prior murder conviction on one of
its witnesses did not violate Brady because the State had no knowledge of such
conviction until well after Appellant’s trial had concluded and the prior conviction
occurred in Florida. Moreover, the prior conviction was immaterial under a Brady
analysis because there is no argument that impeachment of the witness based on
such conviction would have changed the outcome of the trial, considering the
witness was in custody and testified that he was sentenced to prison.
For these reasons the State respectfully asks the court to overrule the
Appellant’s point of error and affirm, in all things, the conviction rendered by the
jury in this matter.
9 COUNTERPOINT
State’s Reply to Appellants’ Point of Error Appellant’s Brief pp. 10-16
NO BRADY VIOLATION OCCURRED FOR POST-TRIAL DISCLOSURE OF A WITNESS’ PRIOR CONVICTION BECAUSE THE INFORMATION WAS IMMATERIAL, THE PROSECUTION’S CASE AGAINST APPELLANT WAS STRONG, AND THERE IS NO EVIDENCE THAT THE EXISTENCE OF THE PRIOR CONVICTION WOULD HAVE CHANGED THE OUTCOME OF THIS TRIAL. ACCORDINGLY, NO ERROR IS PRESENTED AND APPELLANT’S SOLE POINT OF ERROR SHOULD BE OVERRULED AND THE JUDGMENT AFFIRMED.
In his sole Point of Error, the Appellant contends that error occurred when
the State failed to turn over information that one of its witnesses had a prior
conviction for murder, and this information was material. (Appellant’s brief, pp.
10). Appellant objects that this error resulted “in an unfair trial for the defendant
and a verdict unworthy of confidence.” Id at 17.
The State notified Appellant that it was made aware in a subsequent trial,
nearly four months following Appellant’s trial, of a prior murder conviction out of
Florida for its witness Clint Barkley. (C.R., Supp. Vol., pp. 4). The State included a
copy of the Florida Appellate Court decision reversing the original conviction and
remanding the case for a new trial. Id at 5. The State’s letter indicated Barkley’s
10 case was retried and he was subsequently convicted a second time of murder. Id at
4.
During the State’s case-in-chief during Appellant’s trial, Barkley testified
before the jury while he was in custody of the Comal County Jail. (R.R. Vol. 3, pp.
200). He informed the jury that he currently lived in the Comal County Jail and
had been sentenced to prison, as well as he had not been promised anything in
return for his testimony at Appellant’s trial. Id.
Brady imposes on the State a Constitutional duty to disclose to a defendant
any material and exculpatory evidence. Hafdahl v. State, 805 S.W.2d 396, 399
(Tex.Crim.App. 1990); see also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963). Brady does not dictate that the prosecution must disclose
exculpatory information to the defense that the State does not have in its
possession and that is not known to exist. Pena v. State, 353 S.W.3d 797, 811
(Tex.Crim.App. 2011), quoting Hafdahl, 805 S.W.3d at 399, n.3.
Once the Court has determined Brady applies, the next question is whether
the evidence would be favorable to the defense. Thomas v. State, 841 S.W.2d 399,
404 (Tex.Crim.App.1992)(en banc). Favorable evidence is defined as any
evidence, that if disclosed and utilized, may be the difference between conviction
and acquittal. Id. Favorable evidence may include impeachment evidence as well
as exculpatory evidence. Pena, 353 S.W.3d at 811. Impeachment evidence would
11 be used to “dispute, disparage, deny or contradict” a witness’ testimony. Thomas,
841 S.W.2d at 404.
Failure to disclose evidence considered favorable violates due process only
if it is “material” to guilt or punishment. U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392,
49 L.Ed.2d 342 (1976). “The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the outcome of
the trial, does not establish ‘materiality’ in the constitutional sense.” Id. Thus, a
showing must be made on appeal that “in light of all the evidence, it is reasonably
probable that the outcome of the trial would have been different had the prosecutor
made a timely disclosure.” Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.
2002). When evaluating materiality, the strength of the Brady evidence is
balanced against the evidence supporting the conviction. Id at 613. It is also
important to consider how disclosure could have affected defense preparation. U.S.
v. Bagley, 473 U.S. 665, 105 S.Ct 3375., 87 L.Ed.2d 481 (1985).
Appellant has the burden of showing that, in light of all the evidence, it is
reasonably probable that the outcome of his trial would have been different had the
State timely disclosed this prior conviction. Webb v. State, 232 S.W.3d 109, 115
(Tex.Crim.App. 2007). “Reasonably probable” is defined in this regards as one that
is sufficient to undermine confidence in the outcome of the trial. The mere
possibility that an item of undisclosed information might have helped the defense,
12 or might have affected the outcome of the trial, does not establish materiality in the
Constitutional sense. Webb, 232 S.W.3d at 115. To rise to the level of reversible
error, Appellant must show that the favorable evidence could reasonably be taken
to put the whole case in such a different light as to undermine confidence in the
verdict. Hall v. State, 283 S.W.3d 137, 171 (Tex.App.—Austin 2009, no pet).
Moreover, generally speaking, new evidence that is “merely cumulative,
corroborative, collateral, or impeaching is rarely of such weight as to bring about a
different result.” Jones v. State, 711 S.W.2d 35, 38 (Tex.Crim.App. 1986).
In Hall v. State, the State failed to disclose a witness’ prior conviction from
New Zealand because evidence of that conviction was contained in a different file
in the District Attorney’s office for prosecution on different charges by a different
prosecution team. Hall, 283 S.W.3d at 177. The Court rejected the “prosecution
team” argument but held the undisclosed conviction in this case was immaterial.
Id. The Court determined there was sufficient other impeachment evidence for the
same witness and the State’s case against the appellant was strong; thus the
evidence would not have had a significant impact on the outcome of the trial. Id.
A. FAVORABLE BUT IMMATERIAL
Evidence that Barkley had a prior murder conviction would clearly be
admissible impeachment evidence under Rule 609, and thus would be considered
“favorable evidence” under this analysis. See TEX.R.EVID. 609. However, there is
13 no evidence or indication that the State had any knowledge of the prior conviction
until a subsequent trial on one of Appellant’s codefendants. At that point, Barkley
volunteered the information; it was not discovered by either party prior to such
admission.
1. STATE WAS UNAWARE OF THE PRIOR CONVICTION
The State points out that this particular situation does not mandate that it
should have known of such prior conviction and was at fault for not disclosing
such information. The record has no facts relating to what was in the State’s file or
what was notated on Barkley’s criminal record. Moreover, the prior conviction was
not only from a different state but had even been overturned by a Florida Appellate
court and remanded for a new trial. Based on the record, there is no evidence the
State had any knowledge anywhere with any person in its office regarding the prior
conviction, and thus was not at fault for failing to disclose such information.
2. BARKLEY PRESENTED PLENTY OF OTHER IMPEACHMENT
EVIDENCE ABOUT HIMSELF
Furthermore, Barkley informed the jury in Appellant’s trial that he was
currently residing at the Comal County Jail and had been sentenced to prison. He
also informed the jury that he smoked marijuana and methamphetamines and
would have used drugs at Chapin’s house that night had they been offered to him.
14 (R.R. Vol. 3, pp. 216). Factually, Barkley presented to the jury plenty of
impeachment evidence as to himself during the trial.
In Saldivar v. State, the State failed to disclose prior theft convictions of one
of its witnesses at trial due to the theft convictions being listed underneath a
variation of the witness’ name, and thus did not show up on the original
background check. Saldivar v. State, 980 S.W.2d 475, 485 (Tex.App.—Houston
[14th Dist.] 1998, pet. ref’d). The Court determined that a more diligent search
would have discovered the prior convictions; however, the Court held the failure to
disclose the convictions was immaterial. Id at 486. The Court determined such
failure was immaterial because there was sufficient other impeachment evidence
for the same witness and the State’s case against the appellant was strong. Id.
3. THE CASE AGAINST APPELLANT WAS STRONG
The State’s case against Appellant was strong. The victim’s testimony that
she was tased, kicked, stabbed, shackled, gagged, blindfolded, hog tied, penetrated,
and left for dead in a shed was corroborated by each of Appellant’s five
codefendants and by the physical evidence located at the scene of the crime.
Appellant himself confessed to shackling Huth, tying her into a sheet, and carrying
her to the shed to leave her. He also admitted to burning Huth’s personal
belongings after the assault. Stovall and Barkley both testified that they saw
Appellant go in and out of the back bedroom.
15 4. WOULD NOT HAVE CHANGED THE OUTCOME OF THE TRIAL
Furthermore, there is no evidence that this prior conviction, had it been
timely discovered and disclosed to the jury, would have changed the outcome of
the trial. Barkley already testified regarding his prison sentence he was facing, as
well as the fact that he used drugs routinely and would have used drugs at Chapin’s
house that night, had he been offered any. His testimony did not leave the
impression with the jury that he was a model citizen. Lastly, the codefendants and
witnesses’ testimony corroborated each other’s testimony. Discounting Barkley’s
testimony completely, Lardieri, Hopkins, Huth, Richards, and Stovall each testified
that Appellant was going in and out of the room in which the assault took place.
Four of these five testified that Appellant made some movement or comment in
furtherance of the attack, including his request to the girls to “wrap it up” and stick
a gun in Huth’s face back in the bedroom. Three of the five, plus Appellant each
testified that Appellant helped tie the handcuffs and shackles in order to hog-tie
Huth and get her to the shed. (R.R. Vol. 5, pp. 199).
5. APPELLANT’S CLAIMS
Appellant, in his brief, claims that the jury would have taken Barkley’s word
with more veracity than any other witness since he was not involved in the assault
and had not been using drugs that evening. (Appellant’s brief, pp. 15). The flaw in
this argument is that Barkley had already informed the jury that he was a felon and
16 headed to prison. (R.R. Vol. 3, pp. 200). This was actually more information than
was tendered to the jury on the rest of the witnesses and co-defendants. The other
codefendants were merely asked if they had been promised anything in return for
their testimony, as well as if they understood what testimonial immunity was.
(R.R. Vol. 3, pp. 200-1 [Barkley]), (R.R. Vol. 4, pp. 106-7 [Hopkins]), Id at 145-6
[Richards], (R.R. Vol. 5, pp. 80-82 [Lardieri]). Not Richards, Lardieri, Hopkins,
nor Appellant testified that they either had been or were headed to prison. Thus,
arguably, the jury would believe Barkley the same as the rest of the witnesses who
testified, or give his testimony even less weight since he readily admitted to before
the jury that he was a felon. Importantly, there is no argument from Appellant how
such knowledge of Barkley’s prior conviction would have changed his trial
strategy or impacted his line of questioning of Barkley in any capacity.
B. CONCLUSION
The prior conviction was immaterial under the facts of this case, and
irrelevant considering the strength of the State’s case. There is no evidence or
demonstration that had Barkley’s prior conviction been timely discovered and
disclosed that it would have had any impact on the outcome of the trial.
Appellant’s Point of Error should be overruled and the judgment of the trial court
be in all things affirmed.
17 CONCLUSION AND PRAYER
Wherefore, premises considered, Appellee prays that this Honorable Court
of Appeals affirm in all matters the judgment of the trial court in this case.
Respectfully submitted,
_/s/ Laura Burton Bates_ Laura Burton Bates Assistant Criminal District Attorney Comal County Criminal District Attorney’s Office 150 N Seguin Street New Braunfels, Texas 78130 Phone: 830-221-1300 Fax: 830-608-2008 LKBTEXAS@GMAIL.COM SBN: 24035014
18 CERTIFICATE OF SERVICE
I, Laura Burton Bates, attorney for the State of Texas, Appellee, hereby
certify that a true and correct copy of this brief has been delivered to the following
individual electronically, this 25th day of November, 2015.
_/s/ Laura Burton Bates_ Laura Burton Bates Counsel for Appellant
Mr. Atanacio Campos 496 S. Castell New Braunfels, TX 78130 atanacio@aol.com
CERTIFICATE OF COMPLIANCE
I, Laura Burton Bates, hereby certify that this document was prepared in MS Word and it does not exceed the allowable length for an appellate brief pursuant to Tex. R. App. Pro. 9.4, as amended and adopted on November 30, 2012, by Order of the Texas Court of Criminal Appeals. The approximate total of words in this document, as calculated by the word processing software, is 4400 words.
_/s/ Laura Burton Bates_______ Laura Burton Bates