NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS. BILLY RAY WILLIAMS, SR., Appellant. vs.

Transcription

1 NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS 5th Court of Appeals FILED: 04/03/ :00 Lisa Matz, Clerk BILLY RAY WILLIAMS, SR., Appellant vs. THE STATE OF TEXAS, Appellee rd On appeal from the 363 Judicial District Court of Dallas County, Texas The Honorable Tracy Holmes, Judge Presiding Cause No. F W APPELLANT'S BRIEF Counsel of Record: APRIL E. SMITH STATE BAR NO P.O. BOX MESQUITE, TEXAS (FAX) ATTORNEY FOR APPELLANT

2 IDENTITY OF PARTIES AND COUNSEL PARTIES TO THE JUDGMENT: APPELLANT: Billy Ray Williams # Fort Stockton Unit 1535 IH-10 East Fort Stockton, TX APPELLEE: Craig Watkins, Dallas County Criminal District Attorney 133 N. Riverfront Blvd., LB 19 Dallas, TX PRESIDING JUDGE: Tracy Holmes DEFENSE TRIAL COUNSEL: Mary Jo Earle Elisha Enoksen TRIAL PROSECUTOR: Frank Ron Wright Audra Riley Brian Poe APPELLATE COUNSEL: April E. Smith P.O. Box Mesquite, TX i

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL.... i TABLE OF CONTENTS...i i INDEX OF AUTHORITIES... iii-iv STATEMENT OF THE CASE...1 ISSUES PRESENTED...1 ISSUE NO. ONE THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE CONVICTION FOR AGGRAVATED ASSAULT. ISSUE NO. TWO THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW DEFENSE COUNSEL TO IMPEACH ERIC CROW WITH A PRIOR INCONSISTENT STATEMENT. ISSUE NO. THREE THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW EVIDENCE REGARDING DAVID CROW S GANG MEMBERSHIP. STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT....6 ISSUE ONE, RESTATED...8 ISSUE NO. TWO, RESTATED ISSUE NO. THREE, RESTATED PRAYER CERTIFICATE OF SERVICE ii

4 INDEX OF AUTHORITIES CASES PAGE Bobo v. State, th 757 S.W.2d 58 (Tex. App. Houston [14 Dist.] 1988, pet. ref'd) Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.) Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) , 18 Crites v. State, 700 S.W.2d 23 (Tex. App. Dallas 1985, no pet.) Gonzales v. State, 685 S.W.2d 47 (Tex. Crim. App. 1985) Hayden v. State, 296 S.W.3d 549 (Tex. Crim. App. 2009) Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 570 (1974) Norman v. State, 523 S.W.2d 669 (Tex. Crim. App.) cert. denied, 423 U.S. 930 (1975) , 19 Ortiz v. State, 825 S.W.2d 537 (Tex. App. El Paso 1992, no pet.) Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002) , 17, 18 Rushton v. State, 695 S.W.2d 591 (Tex. App. Corpus Christi 1985, no pet.) Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) iii

5 Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982) Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002) , 18 STATUTES TEX. PEN. CODE ANN (a)(1) (Vernon 2009)...8 T EX. PEN. CODE ANN (a)(2) (Vernon 2009)...1, 8 TEX. PEN. CODE ANN. 9.31(a) (Vernon 2007)...9 T EX. PEN. CODE ANN. 9.32(a) (Vernon 2007)...9 RULES TEX. R. EVID. 404(a)(2) T EX. R. EVID. 613(a)...14, 17 iv

6 TO THE HONORABLE COURT OF APPEALS: COMES NOW, Billy Ray Williams, Sr., Appellant, and respectfully submits this brief urging error from a conviction for the offense of aggravated assault. STATEMENT OF THE CASE Williams was indicted for the second degree felony offense of aggravated assault, a violation of TEX. PEN. CODE ANN (a)(2) (Vernon 2009). (CR: 9). The indictment included two enhancement paragraphs. (CR: 9). Despite Williams' plea of not guilty, a jury found him guilty as charged. (CR: 47; RR-5: 82-84). Williams pled not true to the enhancement paragraphs. ((RR-6: 6). The Court found the first paragraph true and sentenced Williams to 15 years confinement in the Texas Department of Criminal Justice - Institutional Division. (CR: 49-50; RR-6: 16). Notice of Appeal was timely filed. (CR: 53). ISSUES PRESENTED ISSUE NO. ONE THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE CONVICTION FOR AGGRAVATED ASSAULT. ISSUE NO. TWO THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW DEFENSE COUNSEL TO IMPEACH ERIC CROW WITH A PRIOR INCONSISTENT STATEMENT. ISSUE NO. THREE THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW EVIDENCE REGARDING DAVID CROW S GANG MEMBERSHIP. 1

7 STATEMENT OF THE FACTS Williams rented a room from David Crow s uncle at a house on Medill Street. (RR-4: ). At the time of trial, Williams was 57-years-old, suffered from rheumatoid arthritis, gout, liver problems and had suffered a heart attack in (RR-4: 158). When Williams returned from washing his clothes, David was there. (RR-4: 161). Williams accidently stepped on, or tripped over, David s foot. (RR-4: 161). David violently beat Williams who had two teeth knocked out and a swollen face, lips and eyes. (RR-4: ). Williams also thought he had a concussion and a broken jaw. (RR-4: 170). Williams was hit times. (RR-4: 164). The beating stopped when David s uncle intervened. (RR-4: 165). Due to his arthritis, Williams was unable to defend himself against David s attack. (RR-4: 163). Williams called the police and reported the incident. (RR-4: 165). Williams, who was afraid of David, spent the night with his girlfriend in Carrollton. (RR-4: 168, ). The next morning, Williams returned to get his belongings from the house. (RR-4: 171). David testified that Williams was drunk, stepped on his foot and refused to apologize. (RR-5: 21). Williams pulled out a knife and David had to defend himself. (RR-5: 21). Officer Mitchell responded to Williams call for assistance. (RR-4: ). Williams face, lips and eyes were swollen and several teeth had been knocked out. (RR-4: 215). Williams had been badly beaten. (RR-4: 215). Mitchell learned that David Crow had assaulted Williams for stepping on his foot. (RR-4: ). Mitchell looked for David for minutes, but was unable to locate him. (RR-4: 218). 2

8 Eugene Crow, Evelyn s cousin, testified that after the beating, Williams told him that he was going to kill David. (RR-5: 31-32). Williams had a rifle with him when he made this statement to Eugene. (RR-5: 33-34). Eugene told Evelyn what he had heard and David was there also. (RR-5: 34). In 1991, Eugene was convicted of delivery of a controlled substance. (RR-5: 28). The next day, David, his brother, Eric, their mother, Evelyn, and her common-law husband, Robert Kinney, went shopping to celebrate Evelyn s birthday. (RR-4: 17-18, 42-42, 90-91). They stopped at the neighborhood store then returned to their apartment and began unloading packages from the car. (RR-4: 19, 44, 61-62, 92). As they unloaded the trunk, Williams drove up behind them and got out of his car. (RR-4: 22, 44, 62, 92). According to Evelyn, Eric and Robert, Williams walked up and punched Eric in the face. (RR-4: 24-25, 46, 93). David did not testify that Williams hit Eric in the face, but said Williams got out of the car with a knife and swung it at Eric. (RR-4: 64-65). When Eric 1 moved to hit Williams, Evelyn intervened because Williams had a knife. (RR-4: 26). Williams then got a rifle from his car and pointed it at Evelyn, who was standing in between Eric and David. (RR-4: 29, 47-48, 65). Williams told David to stop being a coward and to step away from Evelyn. (RR-4: 29, 49, 66). When David broke away from Evelyn, Williams shot him in the shoulder, knocking him to the ground. (RR-4: 30, 49, 67, 97-98). Williams 1 Evelyn Crow and Eric Crow testified that Williams had a switchblade while Williams testified that it was a pocketknife. (RR-4: 26, 46, 170, 190; RR-5: 18). Williams was also charged with the aggravated assault of Eric, but was found not guilty by the jury. (RR-5: 84). The indictment in Eric s case alleged that Williams intentionally or knowingly threatened Eric with imminent bodily injury while using or exhibiting a deadly weapon: a knife or a rifle. (RR-3: 23-24). 3

9 shot David twice more. (RR-4: 31, 49, 67-68, 99). David was shot in the shoulder, the feet and the left butt cheek. (RR-4: 67-68). David refused to provide officers a description of the suspect. (RR-4: 116). Joyce Rabb, who was at the apartment complex visiting a friend, heard a commotion outside and looked out the window to see what was going on. (RR-4: 74). She saw a man standing over a boy on the ground. (RR-4: 74). When she got outside, the man shot the boy. (RR-4: 75). She was unable to identify anyone in court. (RR-4: 80). Rabb had previously been convicted of four theft offenses. (RR-4: 78). Williams testified that he feared David. (RR-4: ). Williams had lived in the area for 40 years and knew David s reputation; David was not peaceful and law-abiding. (RR-4: 169). David was a drug dealer and robber who beat up people and took their money. (RR-4: 169). Williams had seen David jump on older men at the bus stop. (RR-4: 169). He had seen David take money from another man who had just cashed a check. (RR-4: 169, 179). Williams had warned others in the area to beware of David and Eric because they were dangerous. (RR-4: 169). Eric also gets into it with older men in the area. (RR-4: 170). When Williams returned to the area from Carrollton, he saw David s biological father (not Robert Kinney) and told him about the beating. (RR-4: ). David s father recommended that Williams speak with Evelyn about the incident. (RR-4: ). Williams went to the neighborhood store and was talking to neighbors about the beating. (RR-4: 177). David walked by and made a gun with his fingers and acted as if he was 4

10 shooting Williams. (RR-4: 177). This made Williams even more afraid. (RR-4: 177). Later, Evelyn, Robert, Eric and David came to the store in their car and began pointing at Williams. (RR-4: 181). Williams decided to talk to Evelyn about the boys behavior. (RR- 4: 177, ). When Williams got out of his car at the Crow s apartment, Eric ran toward him so Williams pulled out his pocket knife. (RR-4: 184). Williams backed away and got a rifle from his car. (RR-4: 184). When David pulled away from Evelyn, Williams thought he had a gun. (RR-4: 184). In fact, Williams heard someone say something like, Get me a gun or Give me a gun or He s got a gun. (RR-4: 185, ). Due to his arthritis, Williams could not have, and did not, hit Eric in the face. (RR-4: 190, 193, 194, 204). Williams did not get his rifle until he heard the statement about a gun. (RR-4: 192). Williams got his gun because he thought Eric and/or David were attacking him. (RR-4: 194). Williams shot David three times in quick succession without pausing. (RR-4: 195). Andrea Hollis, Williams girlfriend, testified to Williams injuries from the beating. (RR-4: ). Williams was scared of David. (RR-4: 224). David and Eric were not peaceful and law-abiding. (RR-4: ). In fact, David was convicted of three drug offenses. (RR-4: 69). Eric has also been convicted of three drug offenses. (RR-4: 53). Eric was treated with an alcohol drip at the hospital due to his dangerously high blood alcohol level. (RR-4: 231). Eric was intoxicated at the time of the shooting. (RR-4: 232). 5

11 Eric admitted being a gang member in his teens. (RR-4: 235). He had 187", the police code for a murder, tattooed on his back and Park Row tattooed on his chest. (RR-4: 236). SUMMARY OF THE ARGUMENT The evidence supports Williams claim of self-defense. In fact, the jury sent out a note which requested the Court be lenient in sentencing, stating, We feel that he [Williams] is the victim in this case - and if we were to consider sentencing, we would have been very lenient. (CR: 48). Williams was badly beaten by David the day before the shooting because he accidently stepped on David s foot. Williams, knowing David and Eric s reputation in the community, feared further violence from David or Eric. Williams had seen David and Eric beat and rob older persons in the neighborhood. David and Eric did not have reputations for being peaceful and law-abiding in the community. Both had been to prison for drugrelated charges. Everyone in the neighborhood feared them. Williams, in fear of being beaten again when Eric advanced on him, pulled out a knife. Then, he heard something about a gun. Believing that David had a gun and in fear, he got a rifle from his car and shot David three times. Williams was defending himself when he fired the rifle. Therefore, the evidence is insufficient to support the conviction for aggravated assault. The trial court abused its discretion by refusing to allow defense counsel to impeach Eric Crow with evidence of his gang involvement. Eric Crow denied being a member of the 6

12 Park Row Posse at the time of this incident. The State did not object to this line of questioning despite it being the subject of a Motion in Limine. Defense counsel sought to admit a card (Defense Exhibit 7) from the DPD Gang Unit completed in May 2009, wherein David and Eric admitted to gang unit officers that they were members of the Park Row Posse. The card was admissible as a prior inconsistent statement pursuant to Rule 613(a). Further, Eric s denial of gang involvement left the jury with a false impression. Thus, the trial court abused its discretion in refusing to allow defense counsel to question Eric about his prior admission of being a gang member made shortly before this incident or to present such evidence (Defense Exhibit 7) to the jury. The trial court abused its discretion in refusing to allow defense counsel to question David about his gang membership in front of the jury. This evidence was admissible pursuant to Rule 404(a)(2). The defense s theory of the case was that the Crows were violent gang members who robbed and beat elderly persons in the neighborhood. Williams knew of David s gang membership and his violent acts which showed Williams state of mind at the time of the offense. Williams state of mind was pertinent to his self-defense claim. The trial court abused its discretion in refusing to allow such evidence to be presented to the jury. 7

13 ISSUE ONE, RESTATED THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE CONVICTION FOR AGGRAVATED ASSAULT. ARGUMENTS AND AUTHORITIES Standard of Review In reviewing a challenge to the sufficiency of the evidence, this Court must examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 570 (1974); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). This standard recognizes the responsibility of the trier of fact fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. The Court must defer to the jury s credibility and weight determinations because the jury is the sole judge of the witnesses credibility and the weight to be given their testimony. Jackson, 443 U.S. at 326. Other Relevant Authorities The State was required to prove beyond a reasonable doubt that Williams intentionally, knowingly or recklessly caused bodily injury to David Crow by shooting him with a rifle and that Williams used or exhibited a deadly weapon, a rifle, during the commission of the assault. See TEX. PEN. CODE ANN (a)(1) (Vernon 2009); TEX. PEN. CODE ANN (a)(2). (CR: 9). 8

14 Section 9.31 provides, in pertinent part: (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other s use or attempted use of unlawful force. TEX. PEN. CODE ANN. 9.31(a) (Vernon 2007). Section 9.32 provides, in pertinent part: A person is justified in using deadly force against another if the actor would be justified in using force against the other under Section 9.31; and when and to the degree the actor reasonably believes the deadly force is immediately necessary: to protect the actor against the other s use or attempted use of unlawful deadly force. TEX. PEN. CODE ANN. 9.32(a) (Vernon 2007). The defendant bears the burden to produce some evidence that supports the defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Id. at The burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt. Id. at 913. When the defendant is found guilty, there is an implicit finding against the defensive theory. Id. at

15 Application to the Instant Case Williams was badly beaten by David the day before the shooting for no apparent reason after accidently stepping on David s foot. (RR-4: ; ). David s uncle encouraged Williams to call the police because David s actions were wrong. (RR-4: 167). Williams reported the assault to the police, who made little effort to locate David that day. (RR-4: 165, 218). When the officer appeared in court after being subpoenaed to testify by the defense, she appeared in civilian clothes, was poorly dressed and looked disheveled. (CR: 55-56). She testified that it was department policy not to wear a uniform when subpoenaed by the defense. (RR-4: 213). The jury was not impressed with her testimony or her actions on the day of the assault. (CR-55-56). Williams, who had lived in the area for 40 years, knew that David and Eric had a reputation in the community for not being peaceful and law-abiding. (RR-4: 169, 170, ). David and Eric were drug dealers. (RR-4: 169). David and Eric had beaten up and robbed other elderly persons. (RR-4: 169, 170). Williams had seen David and Eric rob and jump on other elderly men in the neighborhood. (RR-4: 169, 170, 179). Williams knew of their reputation and, in fact, warned others of their dangerousness. (RR-4: 169). As further evidence of Eric s reputation, his own mother referred to him as Lawless during her testimony. (RR-4: 24). The next day, Williams decided to speak with Evelyn regarding David s unprovoked attack on him. (RR-4: 177, ). Williams pulled up behind them, but before he was 10

16 able to ask to speak with Evelyn, Eric ran aggressively toward him. (RR-4: 184). Williams, believing he was about to be attacked or beaten again, pulled out his pocketknife and walked backwards to his car. (RR-4: 184). Williams then heard a statement about a gun and believing that David had a weapon, Williams then retrieved a rifle from the back seat of his car. (RR-4: 184, 185, , 192, 194). Williams shot David three times. (RR-4: 195). David, Eric, Evelyn, and Robert all testified that after Williams fired the first shot, which struck David in the shoulder and knocked him to the ground, Williams approached and stood over David, firing two more shots. (RR-4: 29, 31, 49, 67-68, 99). The crime scene photos prove that this occurred in a very small area. See State s Exhibits 2-4. Officer Holliday testified that placard A denotes a bullet lodged in the fence. (RR-4: , 129; State s Exhibits, 4, 6). Placards B, C and D denote the location of cartridge casings. (RR-4: , 129; State s Exhibits 3, 7, 8). Placard F denotes blood on the concrete. (RR-4: 129; State s Exhibit 11). Placard E depicts the location of a baseball cap. (RR-4: 127; State s Exhibit 4, 10). Evelyn, Eric, David, Robert, Joyce Rabb, and Williams all testified that Williams fired three shots. (RR-4: 30-31, 49, 67-68, 74-75, 98-99, 195). Three cartridge casings were recovered. (RR-4: , 129). Also, a bullet was lodged in the fence. (RR-4: , 129; State s Exhibits 4, 6). That bullet is positioned toward the bottom of the fence. See State s Exhibit 6. 11

17 Williams testified that he was walking toward David as he began firing; he was not aiming the rifle. (RR-4: 207, 208). It is reasonable to believe that he continued walking forward as he fired because he testified that he fired three times in quick succession without pausing. (RR-4: 195). Based on the crime scene photos, it is reasonable to assume that Williams was in the traffic lane, as he testified, when he shot David as one cartridge case was found in the parking lot (placard D ) and another nearby on the grass (placard C ). (RR-4: 208; State s Exhibit 3). David was hit in the shoulder and fell down causing his baseball cap to fall off his head. See State s Exhibits 4 and 10. Thus, David fell with his head away from the sidewalk area. See State s Exhibit 4. The blood depicted in State s Exhibit 11 was probably from the shot(s) that struck David s feet and butt as the shoulder injury would be closer to the head. Thus, the crime scene photos support Williams version of events: that he walked toward David and began firing. It is logical that the casings fell as Williams walked and that the shots were fired in the following order: placard D, placard C and placard B. See State s Exhibit 3. Eugene s testimony that Williams threatened David is not credible. David and Eric had a reputation for being violent toward elderly persons in the neighborhood. (RR-4: 169, 170, 179). David, who was forewarned of Williams threat, did not take it seriously. He did not report the threat to police, made no effort to protect himself or watch for Williams to approach. In fact, when he saw Williams at the store the next day, he fired a finger gun at Williams. (RR-4: 177). David testified that while shopping with his mom, he believed 12

18 Williams was going to try to kill him. (RR-5: 24). Despite this knowledge, David said that neither he nor Eric, both convicted drug dealers, had a weapon with them. (RR-4: 24, 53, 69). Clearly, David was not afraid of Williams because he refused to cooperate with police and provide a description of the suspect (Williams) to the officers who responded to the shooting call. (RR-4: 116). The jury requested leniency in sentencing by the Court and indicated they believed that Williams was the victim in this incident. (CR: 48). Conclusion The evidence shows that Williams acted in self-defense. He was badly beaten by David the day before the shooting. Then, Eric charged at him when he got to the apartment complex to discuss the matter with Evelyn. Williams retreated to his car and upon hearing something about getting a gun, and believing that David had a gun, got his rifle from the car and shot David three times. Based on the evidence presented, no rational trier of fact could have found that the essential elements of the offense were proven beyond a reasonable doubt. The evidence is insufficient to support the jury s implied finding against self-defense. Thus, the evidence is insufficient to support the conviction. The case should be reversed and an acquittal entered. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982). 13

19 ISSUE NO. TWO, RESTATED THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW DEFENSE COUNSEL TO IMPEACH ERIC CROW WITH A PRIOR INCONSISTENT STATEMENT. ARGUMENTS AND AUTHORITIES Standard of Review The trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). The trial court s decision is reversed only if that decision was clearly wrong and outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). The trial court s decision is upheld if it is correct on any theory the evidence supports. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Other Relevant Authorities Rule 613(a) provides, in pertinent part: In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. TEX. R. EVID. 613(a). 14

20 Additional Facts When defense counsel called Eric Crow as a witness, he admitted joining the Park Row Posse gang when he was 16-years-old. (RR-4: ). David was also a member of the gang. (RR-4: ). Eric admitted having a Park Row tattoo on his chest and having 187" (the police code for murder) tattooed on his back. (RR-4: 236). Eric was a member of the gang for seven or eight years. (RR-4: 252). Eric admitted having fired a handgun at someone. (RR-4: 237). Eric admitted being arrested for family violence against his girlfriend, but the charge was dropped. (RR-4: 242). Despite this evidence being the subject of the State s Motion in Limine, the prosecutor did not object until defense counsel inquired about the boundaries of the gang. (RR-4: ; CR: 30-31). After the State objected, Eric was not asked any further questions. (RR-4: ). When trial resumed the next morning, defense counsel sought to admit evidence that Eric admitted to two Dallas Police Gang Unit officers that he was a member of the Park Row Posse in (RR-5: 6-7). The Court refused to allow counsel to impeach Eric with this evidence. (RR-5: 7). This report was offered as Defense Exhibit 7, which was admitted for record purposes only. (RR-5: 11-13). Defense Exhibit 7 indicates that David and Eric were members of the 187 Park Row Posse. The second card in Defense Exhibit 7, indicates that Eric had claimed membership in the Park Row Posse and 357 Crips in the past. 15

21 Application to the Instant Case When Eric Crow testified, he admitted to his gang membership in the past, but denied being a gang member at the time of the offense. (RR-4: , 241, 245). However, counsel had documentation proving that in 2009, Eric admitted to two DPD Gang Unit officers that he was a member of the Park Row Posse. See Defense Exhibit 7. Despite the Motion in Limine filed by the State, the prosecutor did not object to any of the testimony elicited from Eric until immediately before he concluded his testimony. (RR-4: ). By failing to object, the State opened the door to the evidence. See Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). Furthermore, when Eric denied being a member of the gang, defense counsel should have been allowed to impeach him with evidence of his admission that he was a gang member, which was made to the Gang Unit officers, on May 4, See Defense Exhibit 7 (gang information card). This was a prior inconsistent statement which was admissible pursuant to Rule 613(a). When the Court refused to allow defense counsel to impeach Eric with evidence of his admission to being a gang member shortly before this incident occurred, the jury was left with the false impression that Eric was not a gang member at the time of this offense. Williams knew of Eric s and David s gang involvement at the time of the offense and their propensity for beating and robbing elderly persons in the neighborhood. In fact, Williams had been beaten severely by David the day before the shooting merely for stepping on David s foot. All of this was part of William s state of mind at the time of the offense and 16

22 was relevant to his self-defense claim. Thus, Eric s admission to gang unit officers that he was a member of a gang was relevant and should have been admitted by the trial court pursuant to Rule 613(a). The Court should have allowed defense counsel to question Eric about his prior inconsistent statement to Gang Unit officers and, if Eric denied making the statement, should have allowed extrinsic evidence (Defense Exhibit 7) to be admitted. Conclusion When evidence was presented showing that Eric was untruthful in his testimony that he was no longer a gang member and had not been since he was in his teens, defense counsel should have been allowed to impeach him with evidence of his admission to DPD Gang Unit officers on May 4, 2009, that he was a gang member. Such was admissible pursuant to Rule 613(a). By failing to allow this evidence to be admitted before the jury, the trial court abused its discretion. The case should be reversed and remanded for a new trial. ISSUE NO. THREE, RESTATED THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW EVIDENCE REGARDING DAVID CROW S GANG MEMBERSHIP. ARGUMENTS AND AUTHORITIES Standard of Review The trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). The trial 17

23 court s decision is reversed only if that decision was clearly wrong and outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). The trial court s decision is upheld if it is correct on any theory the evidence supports. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). The decision is upheld even if the trial judge gives the wrong reason for its decision. See Osbourn, 92 S.W.3d at 538 (citing Salas v. State, 629 S.W.2d 796, 799 (Tex. Crim. App. 1981)). Other Relevant Authorities A motion in limine is a method of raising an objection to an area of inquiry prior to the matter reaching the ears of the jurors through a posed question, jury argument, or other means. Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App.) cert. denied, 423 U.S. 930 (1975). The ruling on a motion in limine is subject to reconsideration throughout the course of the trial. Id. A trial court's granting of a motion in limine in an opponent's favor merely demands that a party seeking to introduce evidence or present jury argument approach the bench for a "definitive" ruling before attempting to put on evidence or present argument within the motion's scope. See Rushton v. State, 695 S.W.2d 591, 594 (Tex. App. Corpus Christi 1985, no pet.). Because a trial court's limine rulings are subject to reconsideration, the mere granting of a motion in limine cannot constitute reversible error. Bobo v. State, 757 th S.W.2d 58, 61 (Tex. App. Houston [14 Dist.] 1988, pet. ref'd) (citing Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979)). Thus, it is not the granting of a motion in limine which constitutes the basis for complaint on appeal but rather the exclusion of the particular 18

24 matter offered with request for reconsideration, which must be the basis for complaint on appeal. Norman, 523 S.W.2d at 671; Crites v. State, 700 S.W.2d 23, 25 (Tex. App. Dallas 1985, no pet.); see also Ortiz v. State, 825 S.W.2d 537, 541 (Tex. App. El Paso 1992, no pet.). For error to be preserved with regard to the subject of a motion in limine, an objection must be made at the time the subject is raised during trial. Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985). Rule 404(a)(2) provides, in pertinent part: Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (2) Character of Victim. In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same. TEX. R. EVID. 404(a)(2). Additional Facts The State filed a Motion in Limine requesting that the defense not be allowed to mention the complainant s gang membership or affiliation or any prior criminal history that does not include felonies or crimes of moral turpitude. (CR: 30). The Court ruled that the defense could question Williams regarding acts he had seen the complaint commit and his 19

25 reputation in the community. (RR-4: ). When Williams testified, he mentioned that the complainant was usually with his gang. (RR-4: 180). Williams also testified that the Crow family had been violent for years. (RR-4: 195). The State did not object to this testimony. (RR-4: 180, 195). Eric Crow testified that David was also a member of the gang. (RR-4: ). The prosecutor did not object to this testimony. (RR-4: ). After the jury left for the day, the State moved to limit the cross-examination into the specific acts of conduct with the remaining witnesses which the Defense is going to recall. (RR-4: 253). The Court told defense counsel not to go into gang activity or any other offense or prior incident that the Crows might have been accused of or involved in. (RR-4: 254). Defense counsel pointed out that the evidence had come in without objection. (RR-4: 254). The Court stated that an objection was not necessary because defense counsel had violated the motion in limine. (RR-4: 254). Defense counsel argued that the State s failure to object opened the door to allow admission of the testimony. (RR-4: 255). The Court ruled that defense counsel could not ask those questions of David Crow when he testified. (RR-4: 256). Defense counsel then made a bill of exception with David Crow. (RR-4: 257). David testified that he was a member of a violent street gang (Park Row Posse) in high school. (RR-4: 258). He denied that the gang robbed and terrorized the neighborhood. (RR-4: 259). David was a member of the gang for about five years. (RR-4: 259). He denied preying on elderly homeless persons in the neighborhood. (RR-4: 260, 261). David said that 20

26 even though he was a member of the gang, he did not involve himself in their violent acts. (RR-4: 262). He denied being arrested for having a blackjack and a club. (RR-4: 262). When trial resumed the next morning, defense counsel sought to admit evidence that Eric and David admitted to two Dallas Police Gang Unit officers that each was a member of the Park Row Posse in (RR-5: 6-7, 12). This report was offered as Defense Exhibit 7 and was admitted for record purposes only. (RR-5: 11-13). Defense Exhibit 7 indicates that David and Eric were members of the 187 Park Row Posse. Application to the Instant Case The defense s theory of the case was that David and Eric Crow were members of the Park Row Posse, a violent street gang, who terrorized the neighborhood by robbing and beating up elderly persons. (RR-4: 267). The Crows had been terrorizing the neighborhood for years. (RR-4: 195). Defense counsel argued that this evidence was admissible to show Williams state of mind at the time of the offense to show that he feared the Crows and their violence. (RR-5: 11-12). The Court refused to allow defense counsel to question David about his membership in a gang and other violent acts. (RR-5: 11-12). Defense counsel argued that evidence of David s gang membership and his arrest for having a blackjack or club was admissible pursuant to Rule 404(a)(2). (RR-5: 8). Such evidence was offered to prove that Williams feared David and Eric, who were members of a violent street gang who robbed and beat elderly persons. Such evidence went to the heart of Williams self-defense claim and his state of mind at the time of the offense. As 21

27 previously argued in Issue No. Two, Eric s testimony that he was not a gang member left a false impression with the jury. David s gang membership was relevant to show Williams state of mind at the time of the offense. The jury heard evidence of Eric s gang involvement and acquitted Williams of the aggravated assault of Eric. (RR-5: 84). However, they were not allowed to hear evidence of David s gang involvement or his prior acts of carrying a club or blackjack and convicted Williams of the aggravated assault on David. Thus, the trial court should have allowed evidence of David s gang involvement and prior acts of violence to be presented to the jury. Such evidence was relevant and went to the heart of Williams self-defense claim. Conclusion Evidence of David s gang membership and violence was admissible pursuant to Rule 404(a)(2). Admission of this evidence would have allowed the jury to see the whole picture of the events leading up to this offense. Such evidence served to reinforce Williams claim that David, a violent gang member, preyed upon elderly persons in the neighborhood by robbing and beating them. Williams knew of this evidence and David s reputation for violence in the community which led to his fear and proved his state of mind at the time of the offense. The trial court abused its discretion in failing to admit such evidence. The case should be reversed and remanded for a new trial. 22

28 PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that his conviction will be reversed and an acquittal ordered. Alternatively, Appellant prays that the conviction will be reversed and remanded for a new trial. Respectfully submitted, APRIL E. SMITH STATE BAR NO P.O. BOX MESQUITE, TEXAS (Fax) aesmithlaw@tx.rr.com CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing brief has been served on Craig Watkins, Dallas County Criminal District Attorney, 133 N. Riverfront Blvd., LB-19, Dallas, Texas , by fax and to Michael Casillas, Chief of the Appellate Division, at michael.casillas@dallascounty.org on April 2, APRIL E. SMITH 23