NO CR; CR; CR IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT DALLAS, TEXAS. JOSEPH GEORGE BUCKALOO, JR.

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1 NO CR; CR; CR IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT DALLAS, TEXAS 5th Court of Appeals FILED: 04/04/ :00 Lisa Matz, Clerk JOSEPH GEORGE BUCKALOO, JR. Appellant VS. THE STATE OF TEXAS Appellee AN APPEAL FROM CAUSE NOS. F W; F W; AND F W IN THE 363RS JUDICIAL DISTRICT COURT OF DALLAS COUNTY SITTING IN DALLAS, TEXAS BRIEF OF APPELLANT APPELLANT REQUESTS ORAL ARGUMENT JOHN H. READ, II DANNY D. BURNS State Bar No State Bar No N. Zang Blvd. 115 North Henderson Street Dallas, Texas Fort Worth, Texas (214) (817) telephone (214) facsimile (817) facsimile

2 NO CR; CR; CR IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT DALLAS, TEXAS JOSEPH GEORGE BUCKALOO, JR. Appellant VS. THE STATE OF TEXAS Appellee AN APPEAL FROM CAUSE NOS. F W; F W; AND F W IN THE 363RS JUDICIAL DISTRICT COURT OF DALLAS COUNTY SITTING IN DALLAS, TEXAS BRIEF OF APPELLANT APPELLANT REQUESTS ORAL ARGUMENT TO THE HONORABLE JUDGES OF THE COURT OF APPEALS: COMES NOW, JOSEPH GEORGE BUCKALOO, JR., Appellant and files this his appeal from his convictions in Cause Numbers F W, F W, and F W out of the 363RD Judicial District Court of Dallas County, Texas. ii

3 LIST OF INTERESTED PARTIES Pursuant to the Texas Rules of Appellate Procedure, Rule 38.1(a), Appellant lists the following persons who have an interest in the appeal for purposes of the Court s determining conflicts and recusals: JUDGES: APPELLANT: HON. Tracy Holmes JOSEPH GEORGE BUCKALOO, JR. 363RD Judicial District Court Frank Crowley Courts Bldg. 133 N. Industrial Blvd. Dallas, Texas TRIAL COUNSEL: HON. Craig Watkins, Dallas County District Attorney Myra McIntosh and Monique Ward Prosecuting Attorneys Dallas County District Attorney s Office 133 N. Industrial Boulevard Dallas, Texas ATTORNEYS FOR DEFENDANT: HON. JOHN H. READ, II 900 N. Zang Blvd. Dallas, Texas HON. Olegario Estrada 5224 West Jefferson Blvd., Suite 150 Dallas, Texas APPELLATE COUNSEL: HON. CRAIG WATSON, DALLAS COUNTY DISTRICT ATTORNEY HON. MIKE CASILLAS, ASSISTANT DISTRICT ATTORNEY Appellate Section th 133 North Industrial, 10 Floor Dallas, Texas iii

4 HON. DANNY D. BURNS, APPELLATE COUNSEL FOR DEFENSE 115 North Henderson Street Fort Worth, Texas HON. JOHN H. READ, II APPELLATE COUNSEL FOR DEFENSE 900 N. Zang Blvd. Dallas, Texas iv

5 REQUEST FOR ORAL ARGUMENT The Appellant MR. JOSEPH GEORGE BUCKALOO, JR. requests that he be allowed to present oral argument on this case. The issues involved in this case are the failure to grant a mistrial after there was improper contact between the family of the complaining witness and the jury. The extraneous matters offered in punishment to increase the sympathy to the complaining witness deprived Mr. Buckaloo of a fair punishment hearing on each of his cases. The issues presented may well benefit from oral arguments and the Court s ability to question the counsel regarding their particular positions. v

6 TABLE OF CONTENTS LIST OF INTERESTED PARTIES iii STATEMENT REGARDING ORAL ARGUMENT TABLE OF CONTENTS v vi TABLE OF CASES AND AUTHORITIES viii SUMMARY OF ARGUMENTS STATEMENT OF THE CASE STATEMENT OF FACTS ISSUES PRESENTED POINT OF ERROR NUMBER ONE. THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT MR. BUCKALOO, JR. WAS THE PERSON FIRING THE SHOTS INTO THE HOME. (R., ENTIRE RECORD OF TRIAL ON THE MERITS) POINT OF ERROR NUMBER TWO. THE TRIAL COURT ERRED IN FAILING TO REMOVE JUROR CAROL SMITH FROM THE JURY AFTER THE IMPROPER CONTACT OF A COMPLAINING WITNESS WITH JUROR CAROL SMITH. (R., Vol. 4, pp. 1-16) vi

7 Point of Error Number Three. THE TRIAL COURT ERRED IN OVERRULING THE OBJECTION TO THE EVIDENCE OF EXTRANEOUS MISCONDUCT BY A THIRD PARTY IN THE PUNISHMENT PHASE OF THE TRIAL. (R., Vol. 4, p. 21) CONCLUSION AND PRAYER CERTIFICATE OF SERVICE vii

8 CASES: TABLE OF AUTHORITIES PAGE: Arizona v. Washington, 434 U.S. 497; 98 S.Ct. 824; 54 L.Ed.2d 717 (1978) Barnett v. State, 161 S.W.3d 128 (Tex.Ct. App. Fort Worth, 2006) Barnett v. State, 189 S.W.3d 272 (Tex.Crim.App., 2006) Boutwell v. State, 719 S.W.2d 164 (Tex.Crim.App., 1985) Gilbert v. State, 808 S.W.2d 467 (Tex.Crim.App., 1991) Jackson v. Virginia, 443 U.S, 307 (1979)... 11,12,13 Malik v. State, 953 S.W. 2d 234 (Tex.Crim.App. 1997) Martinez v. State, 378 S.W.2d 845 (Tex.Crim.App. 1964) Moreno v. State, 755 S.W. 2d 866 (Tex.Crim.App. 1988) ,12 Ocon v. State, 284 S.W.3d 880 (Tex.Crim.App., 2009) Robinson v. State, 851 S.W.2d 216 (Tex.Crim.App., 1991) Stogsdill v. State, 552 S.W.2d 481 (Tex.Crim.App. 1977) Turner v. State, 805 S.W.2d 423 (Tex.Crim. App. 1991) viii

9 Young v. State, 137 S.W.3d 65 (Tex.Crim.App. 2004) Young v. State, 544 S.W.2d 421 (Tex.Crim.App. 1976) ,14 STATUTES AND AUTHORITIES: Texas Code of Criminal Procedure Article Article Article ,19 Texas Rules of Evidence, Rule Rule ,19 Rule TEXAS CONSTITUTION Article I, Section UNITED STATES CONSTITUTION Sixth Amendment ix

10 SUMMARY OF ARGUMENTS The evidence against Mr. Joseph George Buckaloo, Jr. was strictly circumstantial and fails to prove guilt beyond a reasonable doubt. The State s only evidence was that Mr. Buckaloo, Jr. was seen outside the house shortly before shots were fired. Mr. Buckaloo, Jr., according to Ms. Estella Segovia, had a firearm shooting her car. In addition, the contact of a key witness and two of the jurors should have resulted in a mistrial or in the alternative to discharge that particular juror. Although the juror and the State s witness denied the contact, it was witnesses by both defense attorneys and the legal assistant of one of them. In addition, the State introduced extraneous evidence of one of the alleged injured parties having suffered abuse as a child, which in no was involved Mr. Buckaloo, Jr. but the trial court overruled the objection, thereby allowing the jury to consider the pre-crime abuse in assessing punishment against Mr. Buckaloo, Jr. 1

11 STATEMENT OF THE CASE Joseph George Buckaloo, Jr. was indicted for three offenses of aggravated assault with a deadly weapon. (R., Vol. 1, p. 2) The indictment alleged Mr. Buckaloo, Jr. was a repeat offender. (R., Vol. 1, p. 2) After presentation of the evidence, the jury returned a verdict of guilty on each case. (R., Vol. 3, p. 183) After a punishment trial, the jury assessed verdicts of 99 years in each case. (R., Vol. 4, p. 151) The trial court ordered the sentences to run concurrently. (R., Vol. 4, p. 152) Mr. Joseph George Buckalaloo, Jr. timely filed a notice of appeal to this Honorable Court. STATEMENT OF FACTS Mr. Joseph George Buckaloo, Jr. entered a plea of not guilty to the allegations in each case. (R., Vol. 3, p ) The State called Estella Segovia who was married to Appellant Joseph George Buckaloo, Jr. for seven years. Soon after getting married, however, their relationship became rocky. She wanted out of the marriage and filed 2

12 for divorce. She got a Protective Order. (R., Vol. 3, p ) On March 19, 2010 her grandfather had died. (R., Vol. 3, p ) Mr. Buckaloo, Jr. texted her to find out where the funeral was going to be. She ignored his texts but Mr. Buckaloo, Jr. still showed up at the funeral. At the funeral Mr. Buckaloo, Jr. held his arms out to her but she ignored him and just sat with her family. Mr. Buckaloo, Jr. contacted her by text and gave his condolences. (R., Vol. 3, p. 20) Ms. Segovia texted him and told him to leave her alone. (R., Vo. 3, p. 21) After the funeral she went to cousin Debra Rodriquez s house. (R., Vol. 3, p. 23) At Rodriquez s house she heard the doorbell ring at 3:00 a.m. (R., Vol.3, p. 24) She went to the door and saw Mr. Buckaloo, Jr. was there. He was wearing a V-neck sweater, a white T-shirt, and jeans. She opened the door slightly and told Mr. Buckaloo, Jr. to leave. She closed the door and locked it. (R., Vol. 3, p. 25) Mr. Buckaloo, Jr. did not have any weapon when she saw him on the porch. (R., Vol. 3, p. 150) Approximately 30 seconds after closing the door she heard the cocking of a gun. Approximately 3

13 30 seconds after that she heard gun fire. (R., Vol. 3, p. 26, 157) When she heard the shots being fired she heard glass breaking. (R., Vol. 3, p. 26) When she looked outside she stated that she saw Mr. Buckaloo, Jr. shooting at her car. (R., Vol. 3, p ) Later she admitted she saw his hand but could not tell what he had but his hand was waving. (R., Vol. 3, p. 152) Mr. Buckaloo, Jr. started back toward the house. (R., Vol. 3, p ) Hector Campozano started yelling that Bianca had been hit. (R., Vol. 3, p. 28) She looked and Bianca had a hole in the side of her face. Bianca s eye where she was shot was drooping,.at the time of the shooting there were seven (7) people in the house. (R., Vol. 3, p. 29) She heard from 16 to 20 gunshots that night. (R., Vol. 3, p. 33) By the time the police arrived, Mr. Joseph George Buckaloo, Jr. was no longer present. (R., Vol. 3, p. 31, 65) Hector Campozano was at Debra Rodriquez s house on March 19, He and Bianca went to the funeral and then they went to the Players Club with some friends.(r., 4

14 Vol. 3, p. 49) Hector had drank six beers at the club between 9:00 p.m. and 2:00 a.m. (R., Vol. 3, p. 122) The Players Club was about a mile from the house and while they were at the Players Club they saw Mr. Joseph George Bucklaoo, Jr. just before they left the Club at midnight. (R., Vol. 3, p ) Hector shook hands with Mr. Buckaloo but they had no conversation. (R., Vol. 3, p. 51) After leaving the Players Club they went home. Around 3:00 a.m. he heard a loud banging noise. (R., Vol. 3, p. 52) He smelled gunpowder from inside the house and when he looked out his window he saw Joseph George Buckaloo, Jr. running to his car. (R., Vol. 3, p. 53, 59) When he walked out into the hallway everybody in the hallway was ducking. (R., Vol. 3, p. 60) Theodore Gross was in training with the Dallas Police Department when he was dispatched to the shooting. (R., Vol. 3, p ) He received the dispatch around 3:19 a.m. and arrived at the location about four minutes later. (R., Vol. 3, p. 63) Officer Kisor, Officer Lakey and Officer Vagara were at the location as well. (R., Vol. 3, p ) Bianca was already being transported 5

15 to the hospital and he spoke with Hector about the incident. He entered the house and saw the bullet fragments in the wall. He also saw the blood soaked in Bianca s bedroom. (R., Vol. 3, p. 65) Officer Kisor had broadcast a description of the suspect and the vehicle. (R., Vol. 3, p. 65) Officer Stephen Cleary with Crime Scene collected the bullet fragments and the shell casings. (R., Vol. 3, pl ) The cartridges indicated that a.223-caliber rifle had been used. (R., Vol. 3, p. 81, 83) Officer Cleary agreed that an M16 rifle fires.223 rounds. (R., Vol. 3, p. 143) No fingerprints were attempted because the reporting parties knew the suspect and besides it was raining. (R., Vol. 3, p. 88) After Crime Scene Officers finished at the scene, the police job was done. (R., Vol. 3, p. 67) Bianca Quiroz at the time was married to Hector Campozano. (R., Vol. 3, p. 99) She and Hector after attending the funeral went to the Players Club where they ran into Mr. Joseph George Buckaloo, Jr. (R., Vol. 3, p ) She and Hector were leaving the Club and went 6

16 straight home. (R., Vol. 3, p. 100) When they got home, she mentioned to Estella that they had bumped into Mr. Buckaloo, Jr. She went to sleep. (R., Vol. 3, p ) When the shooting started a bullet entered her bedroom and struck her in the face. She did not feel the bullet nor even wake up. Hector had to tug at her to get her awake. She is just a heavy sleeper. Hector told her to go to the bathroom and she looked in the mirror and saw that half her face was coming off. At that point she felt pain and she screamed for Hector. Hector told her it was going to be all right. (R., Vol. 3, p. 102) She was taken to Methodist Hospital and then transferred to Parkland Hospital. She had a total of six (6) surgeries on her face. She received a prosthetic eye. The doctors told her she would not need further surgery. (R., Vol. 3, p ) She never saw a firearm that night. (R., Vol. 3, p. 114) The State rested their case in chief and the defense moved for a directed verdict on each case. Each directed verdict motion was denied. (R., Vol. 3, p ) The defense renewed the Motions at the close of the defense s 7

17 case. The Motions were again denied. (R., Vol. 3, p ) The jury found Mr. Joseph George Buckaloo, Jr. guilty in each of the three cases. (R., Vol. 3, P. 183) After the jury verdicts, the defense team observed improper contact with a juror, Carol Smith, by Estella Segovia, the ex-wife of Mr. Buckaloo, Jr. (R., Vol. 4, p. 7-16) Defense counsel Olegario Estrada testified to seeing Estella Segovia on the 3rd floor of the parking garage telling Carol Smith and another juror thank you for the guilty verdict. Both of the jurors said you are welcome and walked into the elevator. (R., Vol. 4, p. 8-9) Yolanda Mendez, a legal assistant to Mr. John H. Read, II, also saw the encounter and heard the jurors say you are welcome. (R., Vol. 3, p. 10) The trial court called Ms. Estella Segovia who testified she did not talk to a juror but rather to her counselor. (R., Vol. 4, p. 12, 61) Her counselor, however, did not match the juror Carol Smith s description. She testified that her counselor Joan Doland, was five feet, two inches tall and only weighed 8

18 110 pounds. (R., Vol. 4, p. 61) The juror s description was that she was a chunky one and that she was a big woman. (R., Vol. 4, p. 11) 9

19 Point of Error Number One. ISSUES PRESENTED THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT MR. BUCKALOO, JR. WAS THE PERSON FIRING THE SHOTS INTO THE HOME. (R., ENTIRE RECORD OF TRIAL ON THE MERITS) Point of Error Number Two. THE TRIAL COURT ERRED IN FAILING TO REMOVE JUROR CAROL SMITH FROM THE JURY AFTER THE IMPROPER CONTACT OF A COMPLAINING WITNESS WITH JUROR CAROL SMITH. (R., Vol. 4, pp. 1-16) THE APPELLANT JOHNNY ALI LAROUSSI WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE TRIAL ON THE MERITS. (ENTIRE RECORD) Point of Error Number Three. THE TRIAL COURT ERRED IN OVERRULING THE OBJECTION TO THE EVIDENCE OF EXTRANEOUS MISCONDUCT BY A THIRD PARTY IN THE PUNISHMENT PHASE OF THE TRIAL. (R., Vol. 4, p. 21) 10

20 POINT OF ERROR NUMBER ONE. THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT MR. BUCKALOO, JR. WAS THE PERSON FIRING THE SHOTS INTO THE HOME OF. (R., ENTIRE RECORD OF TRIAL ON THE MERITS) LAW: The Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution guarantees a defendant the right to a fair and impartial trial. When an appellate court is called upon to evaluate the legal sufficiency of the evidence, it determines whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. See: Jackson v. Virginia, 443 U.S, 307 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim. App. 1991); Moreno v. State, 755 S.W. 2d 866 (Tex.Crim. App. 1988). Courts refer to this rule as the Jackson standard, which was explained in Moreno v. State, supra, as follows: The court is never to make its own myopic determination of guilt from reading the cold record. It 11

21 is not the reviewing court's duty to disregard, realign or weigh the evidence. Once the fact finder, best positioned to consider all of the evidence firsthand, viewing the valuable and significant demeanor and expression of the witnesses, has reached a verdict beyond a reasonable doubt. Such a verdict must stand unless it is found to be irrational or unsupported... by the evidence, with such evidence being viewed under the Jackson light. Concrete application of the Jackson standard is made by resolving inconsistencies in the testimony in favor of the verdict. Moreno, 755 S.W. 2d at 867. In a jury case, the evidentiary sufficiency is measured against the hypothetically correct jury charge. Malik v. State, 953 S.W. 2d 234 (Tex.Crim.App. 1997). The trial court is presumed to follow the law and ignore inadmissible information. The State has an obligation to prove all the elements of the crime alleged beyond a reasonable doubt. Martinez v. State, 378 SW2d 845 (Tex.Crim.App. 1964). Proof in a circumstantial evidence case must still meet the criteria of proof beyond a reasonable doubt. If a reasonable 12

22 doubt exists in a circumstantial evidence case, the conviction cannot be sustained. SEE FOR EXAMPLE: Stogsdill v. State, 552 S.W.2d 481 (Tex.Crim.App. 1977). When examining the sufficiency of the evidence presented at trial, the reviewing court must still respect the presumption of innocence. According to the Court of Criminal Appeals, [i]n ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review the evidence in the light of the presumption that the accused is innocent. The court will not presume any acts against the accused that are not shown to have been committed by him. Young v. State, 544 S.W.2d 421 (Tex.Crim.App. 1976). When applying the Jackson standard to the evidence presented against Joseph George Buckaloo, Jr. at his trial, at best the State was able to prove that Mr. Buckaloo, Jr. was present when the shooting occurred. The State presented the testimony of Estella Segovia who testified she looked outside and saw Mr. Buckaloo, Jr. shooting at her car. (R., Vol. 3, p ) Later, on 13

23 cross-examination, she admitted she saw his hand but could not tell what he had but his hand was waving. (R., Vol. 3, p. 152) She admitted on that cross-examination that when she saw Mr. Buckaloo, Jr. On the porch of the house she did not see any weapon. (R., Vol. 3, p. 150) She further testified that after the shooting she opened the door and saw Mr. Buckaloo, Jr.. But she was sure it was Mr. Buckaloo, Jr. firing the shots. (R., Vol. 3, p. 158) The evidence presented at trial that Mr. Joseph George Buckaloo, Jr. was the shooter was speculative at best. Mr. Buckaloo, Jr. was entitled to a presumption of innocence at trial and is still entitled to one for this challenge to the sufficiency of the evidence. Young, 544 S.W.2d at 421. Proof amounting to only a strong suspicion or mere probability is insufficient to support a conviction on appeal based on legal sufficiency. Id. Mr. Joseph George Buckaloo, Jr. is entitled to have his conviction reversed and to have a judgment of acquittal entered on the case. 14

24 POINT OF ERROR NUMBER TWO. THE TRIAL COURT ERRED IN FAILING TO REMOVE JUROR CAROL SMITH FROM THE JURY AFTER THE IMPROPER CONTACT OF A COMPLAINING WITNESS WITH JUROR CAROL SMITH. (R., Vol. 4, pp. 1-16) LAW Article of the Texas Code of Criminal Procedure provides No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court. A person violating Article is subject to contempt under Article of the Texas Code of Criminal Procedure. When Article of the Texas Code of Criminal Procedure is violated, a rebuttable presumption of injury to the defendant arises. Ocon v. State, 284 S.W.3d 880 at 884 (Tex.Crim.App., 2009); Robinson v. State, 851 S.W.2d 216 at 230 (Tex.Crim.App., 1991). The burden is on the State to rebut the presumption. Robinson v. State, 851 S.W.2d 216 at 230 (Tex.Crim.App., 1991) The party alleging juror misconduct should initiate juror questioning. Ocon v. State, 284 S.W.3d 880 at

25 (Tex.Crim.App., 2009) Questioning of jurors who allegedly participated in misconduct is a less drastic remedy than a mistrial. Arizona v. Washington, 434 U.S. 497 at ; 98 S.Ct. 824; 54 L.Ed.2d 717 (1978). An appellant who moves for a mistrial without first requesting a less drastic alternative forfeits appellate review of that class of events that could have been cured by the lesser remedy. Barnett v. State, 161 S.W.3d 128 at 134 (Tex.Ct. App. Fort Worth, 2006), affirmed Court of Appeals, Barnett v. State, 189 S.W.3d 272 (Tex.Crim.App., 2006); Young v. State, 137 S.W.3d 65 at 70 (Tex.Crim.App. 2004). FACTS In this case, defense counsel moved for the less drastic alternative of discharging Ms. Carol Smith and proceeding with eleven jurors to insure a fair trial. (R., Vol. 4, p. 16) Defense counsel Olegario Estrada and John Read s legal assistant, Yolanda Mendez, both testified to seeing the juror and Ms. Estella Segovia talking. Ms. Estella Segovia testified that she was talking to her 5 foot 2 inchs tall, 110 pound counselor. The description of the 16

26 counselor was diametrically opposed to the description of the juror, chunky and tall. (R., Vol. 4, p. 61, 11) Since both the juror and the complaining witness were in contempt of court, they denied the contact. Defense counsel was adamant that the person whom Estella Segovia thanked and gave a hug was the juror Carol Smith and even noted that the juror had a juror s badge when she entered the elevator. (R., Vol. 4, p. 15) The only credible evidence offered was the attorneys and the legal assistant, all officers of the Court. Although counsel requested a mistrial, he also requested the less drastic remedy of having the contaminated juror removed from the jury. The trial court reversibly erred in leaving the contacted juror on the jury. Appellant Joseph George Buckaloo, Jr. is entitled to have his convictions and sentences reversed and to have the cause remanded for a new trial. 17

27 POINT OF ERROR NUMBER THREE. THE TRIAL COURT ERRED IN OVERRULING THE OBJECTION TO THE EVIDENCE OF EXTRANEOUS MISCONDUCT BY A THIRD PARTY IN THE PUNISHMENT PHASE OF THE TRIAL. (R., Vol. 4, p. 21) LAW A defendant is entitled to be tried on the charges alleged against him and not as a criminal in general. Boutwell v. State, 719 S.W.2d 164 (Tex.Crim.App., 1985) Evidence is relevant that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R.Evid., Rule 401; Gilbert v. State, 808 S.W.2d 467 (Tex.Crim.App., 1991). Evidence of extraneous acts may be admissible under the provisions of Rule 404(b) of the Texas Rules of Evidence. FACTS In the present case none of the exceptions listed in Rule 404(b) are present. Article of the Texas Code of Criminal Procedure provides that evidence is admissible that the court deems relevant to sentencing, including, 18

28 but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act (3)(a)(1). TEXAS CODE OF CRIMINAL PROCEDURE, The admission of extraneous offenses committed by third parties to inflame the prejudices of the jury is not admissible under any theory of the law. In this case, however, the State was allowed to elicit from one of the complaining witnesses that she was a victim of child abuse and, by implication, that Appellant Joseph George Buckaloo, Jr. should be additionally punished for those previous extraneous acts for which he had no culpability. The State in the punishment phase of the trial presented the testimony from Estella Segovia 19

29 that she obtained a protective order against Mr. Buckaloo, Jr. because It was a controlling relationship from the beginning, but when you re in it, you don t understand it because you think it s normal because I was a victim of child abuse. You know, that was my foundation. But I lived it, and then. Defense counsel s objection was that that s improper, anything about her child abuse has nothing to do with this case. (R., Vol. 4, p. 21) The trial court overruled the objection. During the objection, Estella Segovia continued in this line stating - I didn t know how to stand up for myself. The evidence had no probative value and was offered to, and did, prejudice the jury and inflame their sympathies resulting in maximum sentences in each case. This evidence was not admissible but the trial court, by overruling the objection told the jury it was proper for them to consider the extraneous acts of a third party in assessing Mr. Buckaloo, Jr. s sentence in each of the cases for which he was found guilty. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, APPELLANT JOSEPH 20

30 GEORGE BUCKALOO, Jr. prays this Honorable Court to set this matter for a hearing and after oral arguments and a full consideration hereon, to reverse the conviction and sentence of Appellant Joseph George Buckaloo, Jr. and to remand the cause for entry of a judgement of acquittal or in the alternative, to remand the cause for a new trial on guilt or punishment, and for such other and further relief to which he may be justly entitled. Respectfully submitted; JOHN H. READ, II DANNY D. BURNS State Bar No State Bar No N. Zang Blvd. 115 North Henderson Street Dallas, Texas Fort Worth, Texas (214) (817) telephone (214) facsimile (817) facsimile 21

31 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been mailed postage prepaid to Craig Watkins, District Attorney Appellate Section Dallas County District Attorney 133 N. Industrial Boulevard Dallas, Texas on this the 3rd day of April, DANNY D. BURNS 22