No CR No CR. FREDDY GONZALEZ, Appellant. vs. THE STATE OF TEXAS, Appellee APPELLANT S BRIEF

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1 No CR No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS 5th Court of Appeals FILED: 06/27/ :00 Lisa Matz, Clerk FREDDY GONZALEZ, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from Criminal District Court No. 7 of Dallas County, Texas In Cause No. F Y and F Y APPELLANT S BRIEF Counsel of Record: Lynn Richardson Julie Woods Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Katherine A. Drew Dallas, Texas Chief, Appellate Division (214) (phone) Dallas County Public Defender s Office (214) (fax) Julie.Woods@dallascounty.org Attorneys for Appellant

2 LIST OF PARTIES APPELLANT Freddy Gonzalez DEFENSE COUNSEL AT TRIAL Marquite Mayes 3102 Maple Avenue, Suite 450 Dallas, Texas, STATE S ATTORNEY AT TRIAL Marc Moffitt Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas APPELLANT S ATTORNEY ON APPEAL Julie Woods Dallas County Public Defender s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Dallas, Texas STATE S ATTORNEY ON APPEAL Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas ii

3 TABLE OF CONTENTS LIST OF PARTIES...ii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 1 POINT OF ERROR The trial court abused its discretion when it overruled Appellant s objections to counsel testifying. STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 3 PRAYER... 6 CERTIFICATE OF SERVICE... 7 iii

4 INDEX OF AUTHORITIES Cases Brown v. State, No CR and CR, 2010 Tex. App. LEXIS 4445 (Tex. App. Dallas June 14, 2010, pet. ref d) (not designated for publication)...4 Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001)...3 Duncan v. State, 95 S.W.3d 669 (Tex. App. Houston [1st Dist.] 2002, pet. ref d)...4 Hartman v. State, 507 S.W.2d 553 (Tex. Crim. App. 1974)...4, 5, 6 Ramirez v. State, 815 S.W.2d 636 (Tex. Crim. App. 1991)...4 Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002)...4 Statutes TEX. CODE CRIM. PROC. Art (a)(1)...4, 6 Rules TEX. R. APP. P. 44.2(a)...6 iv

5 TO THE HONORABLE COURT OF APPEALS: COMES NOW Appellant, Freddy Gonzalez, and submits this brief on appeal from two convictions in Criminal District Court No. 7 of Dallas County, Texas, the Honorable Michael Snipes, judge presiding. STATEMENT OF THE CASE A grand jury indicted Appellant on two charges of aggravated robbery with a deadly weapon. (CR1: 13; CR2: 11). 1 Appellant entered an open plea of guilty and judicially confessed to both charges. (CR1: 65; CR2: 42; RR1: 6-7; RR2: 7). The judge accepted Appellant s guilty pleas, found Appellant guilty in both cases, and sentenced him to 50 years imprisonment in the Texas Department of Criminal Justice, the sentences to run concurrently. (CR1: 55; CR2: 47; RR2: 70). Appellant timely filed his notices of appeal. (CR1:59; CR2: 40). ISSUE PRESENTED POINT OF ERROR The trial court abused its discretion when it overruled Appellant s objections to counsel testifying. STATEMENT OF FACTS Martin Avalos and his girlfriend, Leticia Delesma, came home in the early morning hours of August 12, 2008, after celebrating Martin s birthday. (RR2: 10). They pulled up to Leticia s apartment, and as they exited the vehicle they saw Appellant and 1 CR1 refers to the Clerk s Record in Appellate Cause No CR (Trial Cause No. F Y). CR2 refers to the Clerk s Record in Appellate Cause No CR (Trial Cause No. F Y). 1

6 another man standing by the dumpster. (RR2: 11). The two men approached Martin and Leticia and robbed both of them at gunpoint. (RR2: 11-12). The State presented the testimony of both Martin and Leticia. (RR2: 9-32). Appellant elected to testify. (RR2: 38-57). During the State s cross-examination of Appellant, the following exchange occurred: Q. [BY THE PROSECUTOR] And you I mean, I can t tell how many times I saw you calling them fuck ass niggas. That was your phrase, wasn t it? I mean, you called teachers that, prison guards that? MS. MAYES: [DEFENSE COUNSEL] Your Honor, I m going to object to counsel testifying. MR. MOFFITT: [PROSECUTOR] Well, is it true? THE COURT: The objection is overruled. Q. [BY THE PROSECUTOR] Did you call all the teachers, prison guards, fuck ass niggas? That was your deal. A. [BY APPELLANT] No, sir. No, sir. Q. No? A. No, sir. I don t remember no teachers, no guards, nothing. Q. Who did you call that? A. I don t recall calling nobody that, sir. (RR2: 52). A few moments later, the prosecutor inquired into Appellant s previous school history. (RR2: 55). The following dialogue occurred: 2

7 Q. [BY THE PROSECUTOR] Because, I mean, as far as school and stuff, I mean, my goodness, you fought all the time. You got suspended what, seven times? MS. MAYES: [DEFENSE COUNSEL] Your Honor, I m going to object to counsel testifying. What is the basis? I mean, he s just running off a litany of things. That s overruled. That s fair cross- THE COURT: examination. (RR2: 55). At the conclusion of the testimony, the court found Appellant guilty and assessed a 50-year prison sentence in each case. (RR2: 70). SUMMARY OF ARGUMENT The trial court abused in allowing the prosecutor to ask improper questions that assumed facts not in evidence. This error was harmful because the prosecutor inserted prejudicial assertions that Appellant committed previous bad acts without proof beyond a reasonable doubt, and the court s 50-year sentence reflects that the court considered these prior bad acts in assessing punishment. ARGUMENT POINT OF ERROR, RESTATED The trial court abused its discretion when it overruled Appellant s objections to counsel testifying. Standard of Review A trial court s ruling regarding the admission or exclusion of evidence is reviewed under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). Appellant recognizes that the trial court s ruling will not usually be disturbed on appeal if it is within the zone of reasonable disagreement. Id. Appellant s 3

8 trial counsel properly asserted an objection in both instances where the prosecutor asked questions that inserted facts into the proceeding. The trial court overruled those objections. Thus, this issue was preserved for appeal. The Law Appellant recognizes that the Texas Code of Criminal Procedure authorizes the court to consider any evidence relevant to sentencing, including extraneous offenses and prior bad acts of the defendant, if it is shown beyond a reasonable doubt that the defendant committed those offenses or bad acts. TEX. CODE CRIM. PROC. Art (a)(1). However, a prosecutor s question cannot assume facts not in evidence. Ramirez v. State, 815 S.W.2d 636, 652 (Tex. Crim. App. 1991); See also Duncan v. State, 95 S.W.3d 669, 673 (Tex. App. Houston [1st Dist.] 2002, pet. ref d) (noting that the objections assumes facts not in evidence and counsel testifying are objections to prevent the interjection of prejudicial hearsay as fact); Brown v. State, No CR and CR, 2010 Tex. App. LEXIS 4445 (Tex. App. Dallas June 14, 2010, pet. ref d) (not designated for publication) (citing Duncan and Ramirez in finding that the prosecutor s question was improper because it assumed facts not in evidence). A prosecutor must have a good faith basis for posing questions. See Wheeler v. State, 67 S.W.3d 879, n. 15 (Tex. Crim. App. 2002) (noting that the State must have a good faith basis for its questions and must be prepared to provide evidence to support its assertions). The State cannot establish its theory of the case on questions alone with no basis of fact. Hartman v. State, 507 S.W.2d 553, 556 (Tex. Crim. App. 1974). 4

9 Analysis In Appellant s case, the prosecutor s questions injected inflammatory and prejudicial hearsay as fact, the very kind of question that an objection to counsel testifying is intended to prevent. The prosecutor s question regarding whether Appellant lodged offensive names towards prison guards and teachers was inflammatory and baseless. Appellant denied that he called anyone these names, and the State offered no additional evidence to support its claim. Thus, the prosecutor s question injected new prejudicial facts into the proceeding that were not supported by any other documentation or evidence. His statement that Appellant used the highly offensive phrase at some point in his life was clearly intended to be shocking and inflammatory. It served no other purpose at all. The prosecutor did not have a good faith basis for asking this question because he was unable to rebut Appellant s testimony that he had not engaged in such behavior. There was no evidence to support the prosecutor s claim. Appellant s trial counsel recognized the lack of a basis for the State s questions about Appellant s prior bad acts and extraneous offenses. She specifically objected to the prosecutor s running off a litany of things as the prosecutor continued to ask questions through which he made assertions of Appellant s bad behavior without a basis to support the claims. (RR2: 55). The State did not connect these asserted bad acts to which defense counsel objected in any way to the charged offense of aggravated robbery. See Hartman, 507 S.W.2d at 507 (noting that it was error to question appellant concerning a general rampage that had no connection with the homicide in question from the standpoint of 5

10 time, place, or parties ). Thus, the State s questions were improper because they assumed facts not in evidence and inserted prejudicial hearsay about prior bad acts without showing a good faith basis for asking the inflammatory questions. Harm Analysis The trial court s error in permitting the prosecutor to ask these questions was nonconstitutional error. Appellant recognizes that an appellate court need not reverse a judgment of conviction or punishment for error that does not affect substantial rights. See TEX. R. APP. P. 44.2(b). Because Appellant denied having engaged in offensive name-calling during his younger years and the State had no additional evidence to prove that Appellant had engaged in such bad acts, the court was not permitted to consider them in assessing punishment. TEX. CODE CRIM. PROC. Art (a)(1). The trial court abused its discretion in allowing the prosecutor to pose improper and inflammatory questions to Appellant. It is quite possible that the trial court did not believe Appellant s forced denials resulting from the prosecutor s improper questions and considered these additional alleged bad acts in assessing punishment. The trial court s error harmed Appellant because he was sentenced to a significant amount of prison time for his offenses. This Court cannot be given fair assurance that the injection of the inflammatory and prejudicial assertions presented through the State s questions did not contribute to Appellant s significant 50-year prison sentence. PRAYER Appellant prays that this Court remand this cause for a new punishment hearing. 6

11 Respectfully submitted, Lynn Richardson Julie Woods Chief Public Defender Assistant Public Defender Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-2 Katherine A. Drew Dallas, Texas Chief, Appellate Division (214) (phone) Dallas County Public Defender s Office (214) (fax) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on the Dallas County Criminal District Attorney s Office (Appellate Division), 133 N. Riverfront Blvd., 10th Floor, Dallas, TX by hand delivery on June 26, Julie Woods 7