No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS. DAVID CHANCE LADOUCEUR, Appellant. vs. THE STATE OF TEXAS, Appellee

Transcription

1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS 5th Court of Appeals FILED: 06/19/ :00 Lisa Matz, Clerk DALLAS DAVID CHANCE LADOUCEUR, Appellant vs. THE STATE OF TEXAS, Appellee BRIEF FOR APPELLANT JOHN HUNTER SMITH SBN: THOMAS P. WYNNE SBN: W. WASHINGTON SHERMAN, TEXAS Tel. (903) Fax (903) ATTORNEYS FOR APPELLANT APPELLANT DAVID CHANCE LADOUCEUR REQUESTS ORAL ARGUMENT

2 IDENTITIES OF PARTIES AND COUNSEL Appellant: DAVID CHANCE LADOUCEUR Attorney for Appellant: On the Appeal Mr. John Hunter Smith Wynne, & Smith 707 W. Washington Sherman, Texas Thomas P. Wynne Milner Finn Price 2828 N. Harwood Ste., Suite 1950 Dallas, Texas At Trial Mr. Don Bailey 309 North Willow Sherman, Texas Attorneys for the State: Ms. Carla Baugh Mr. Britton T. Brooks Ms. Bi Hunt Grayson County District Attorney s Office 200 S. Crockett Sherman, Texas Trial Court: County Court at Law # 2 Grayson County, Texas The Honorable Carol M. Siebman, Presiding Ladouceur v. State, No CR i

3 TABLE OF CONTENTS Identity of Parties and Counsel.... i Index of Authorities...iii, iv Statement of the Case... 1 Issues Presented... 4 Statement of Facts... 5 Summary of the Argument... 7 Points, Arguments, and Authorities I: The Appellant s conviction should be reversed because the evidence is legally insufficient to support a conviction for Criminal Trespass II: III: IV: The Appellant s conviction should be reversed because the evidence is legally insufficient to support a conviction for Criminal Trespass because the Trial Court charged the jury with the Class A Misdemeanor offense of Criminal Trespass in the punishment phase of trial, after the State abandoned the deadly weapon element when it read the information to the jury The Appellant s conviction should be reversed when the Trial Court abused its discretion when it failed to grant a mistrial for the State violating the Trial Court s ruling on the motion in limine The Appellant s conviction should be reversed when the Trial Court abused its discretion by admitting pictures of Appellant s tattoos for the purpose of identification Conclusion and Prayer for Relief Certificate of Service Certificate of Compliance Ladouceur v. State, No CR ii

4 United States Supreme Court Cases INDEX OF AUTHORITIES Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) , 11 Court of Criminal Appeals Cases Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996) Brazzell v. State, 481 S.W.2d 130, 131 (Tex.Crim.App.1972) Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App.1984) Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) , 11 Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998) Fuller v. State, 827 S.W.2d 919, 926 (Tex.Crim.App.1992) Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App.2002) , 11 Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988) Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992) Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op on reh g).. 18, 19 Salazar v. State, 284 S.W.3d 874 (Tex.Crim.App.2009) Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App.1999) Tyra v. State, 897 S.W.2d 796, 798 (Tex.Crim.App.1995) Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App.1985) Webb v. State, 760 S.W.2d 263, 275 (Tex.Crim.App.1988) Ladouceur v. State, No CR iii

5 Texas Court of Appeals Cases Gonzalez v. State, st 838 S.W.2d 848, 862 (Tex.App. Houston [1 Dist.] 1992, pet. dism d) Jo Lockridge General Contractors, Inc. v. Morgan, 848 S.W.2d 248, 250 (Tex.App.- Dallas , writ denied) Harnett v. State, 38 S.W.3d 650, 655 (Tex.App.- Austin 2000, pet. ref d) Morgan v. State, 755 S.W.2d 403, 406 (Tex.App - Houston [14th Dist. 1989, no pet.] Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907 (Tex.App. Dallas--2008) Constitutional Provisions, Statutes, and Rules TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE g(a)(2) T EXAS CODE OF CRIMINAL PROCEDURE ARTICLE 36.01(a)(1) T EX. PENAL CODE ANN., Section T EX. PENAL CODE ANN., Section 1.07(a)(35)...9 T EX. PENAL CODE ANN., Section 1.07(a)(17)(A) & (B) T EX. PENAL CODE, Section T EX. PENAL CODE, Section 30.05(a)(d)(3)(B) T EX. PENAL CODE, Section 30.05(a)(d)(1)...5 T EX. R. APP. P. 33.1(a) T EX. R. CRIM. EVID., Section , Ladouceur v. State, No CR iv

6 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS DAVID CHANCE LADOUCEUR, Appellant vs. THE STATE OF TEXAS, Appellee APPELLANT S BRIEF STATEMENT OF THE CASE Appellant, David Chance Ladouceur, was charged by information on December 7, 2010 alleging that he committed the offense of Criminal Trespass on or about August 28, The information alleged that Ladouceur did the following: Did then and there intentionally or knowingly enter property of another, namely, Teri Cooley, without the effective consent of the said Teri Cooley, and the said defendant had notice that the entry was forbidden against the peace 1 and dignity of the State. (CR, 7). On December 10, 2011, the State of Texas filed a Notice of Intent to Enhance alleging that the defendant carried a deadly weapon during the commission of the Criminal Trespass that would increase the defendant s punishment range from a Class B Misdemeanor to a 1 Hereinafter, the abbreviation (CR) will be used as citation for the Clerk s Record, and the abbreviation (Vol. RR Page #) will be used as citation for the Reporter s Record. Ladouceur v. State, No CR 1

7 Class A Misdemeanor. (CR, 42-43). Also, on December 1, 2011, the State filed a Motion to Amend Information alleging that Ladouceur did the following: th...on or about the 28 day of August, 2010 A.D., and anterior to the making of this complaint, in the County of Grayson, and State of Texas, David Ladouceur did then and there intentionally or knowingly enter or remain on property of another, namely Teri Cooley or Kevin Galyon, without the effective consent of the said Teri Cooley or Kevin Galyon, and the said defendant had notice that entry was forbidden... (CR, 45-46). The trial court did not grant this requested amendment. This case was set for trial on December 6, On December 5, 2011, the State of Texas filed Notice Of Intent To Introduce Prior Convictions For Enhancement Purposes Under Texas Penal Code Section (CR, 48-49). Also, on December 5, 2011, the State nd filed a 2 Motion to Amend Information alleging that Ladouceur did the following: th...on or about the 28 day of August, 2010 A.D., and anterior to the making of this complaint, in the County of Grayson, and State of Texas, David Ladouceur did then and there intentionally or knowingly enter or remain on property of another, namely Teri Cooley or Kevin Galyon, without the effective consent of the said Teri Cooley or Kevin Galyon, and the said defendant had notice that entry was forbidden... And the defendant did then and there carry a deadly weapon during the commission of the offense. (CR, 50-51) nd As a result of the State s 2 Motion to Amend Information, Counsel for the Defendant filed a Motion to Deny Amendment (CR, 54-57), and the State filed a Response Brief (CR, nd 58-62). The Trial Court granted the State s 2 motion to amend information. (CR, 64). A jury trial was held before County Court at Law # 2, with the Honorable Carol M. Siebman presiding, beginning on February 28, 2012, and ending on February 29, At Ladouceur v. State, No CR 2

8 the close of the State s case, counsel for Ladouceur orally requested a motion for a directed/instructed verdict. (3 RR 51-54). The Trial Court denied the motion for directed/instructed verdict. (3 RR 80). The jury found Ladouceur guilty. (CR, 81-85)(3 RR 99). Ladouceur elected for the jury to assess punishment in this case. (CR, 27-28). The jury found that a deadly weapon was used during the commission of the offense, and set the punishment in this case at 365 days in the county jail, $4, fine, plus all cost of court. (CR, 88-92, 96)(3 RR ). On March 5, 2012, Ladouceur timely filed a pro se Notice of Appeal. (CR, ). Subsequently, on March 14, 2012, Counsel for Ladouceur filed and Amended Notice of Appeal. (CR, ). On March 22, 2012, the Trial Court granted post-trial bail pending appeal and conditions of bond. (CR, ). Ladouceur v. State, No CR 3

9 ISSUES PRESENTED POINT OF ERROR ONE: The evidence is legally insufficient to support a conviction for Criminal Trespass. POINT OF ERROR TWO: The evidence is legally insufficient to support a conviction for Criminal Trespass because the Trial Court charged the jury with the Class A Misdemeanor offense of Criminal Trespass in the punishment phase of trial, after the State abandoned the deadly weapon element when it read the information to the jury. POINT OF ERROR THREE: The Trial Court erred by failing to grant a mistrial for the State violating the Trial Court s ruling on the motion in limine. POINT OF ERROR FOUR: The Trial Court erred by admitting pictures of Appellant s tattoos for the purpose of identification. Ladouceur v. State, No CR 4

10 STATEMENT OF THE FACTS The information charged Appellant with the offense of Criminal Trespass and during the commission of the criminal offense he carried a deadly weapon under Texas Penal Code 30.05(a)(d)(3)(B). (CR, 50-51, 64). However, the State of Texas arraigned Appellant with a Class B misdemeanor, Criminal Trespass under Texas Penal Code 30.05(a)(d)(1). (3 RR 11-12). In June of 2010, Trooper Kevin Galyon of the Texas Department of Public Safety began working as a courtesy officer at Heritage Park Apartments in Denison, Texas. (3 RR 15-16, 38). In exchange for services as a courtesy officer Galyon receives reduced rent on his apartment. (3 RR 15). On July 20, 2010, Galyon in his capacity as a courtesy officer responded to a disturbance at the apartment complex. (3 RR 23). As a result of the disturbance, local law enforcement and Teri Cooley the apartment complex manager arrived to the scene of the disturbance. (3 RR 23). Because of the disturbance, Appellant was issued a criminal trespass warning by Cooley. (3 RR 34). According to Galyon, he did not have authority from Robert Rumsey the owner of the property to issue criminal trespass warnings on July 20, (3 RR 38, 41). Specifically, he did not receive authority from the owner to issue criminal trespass warnings until the Summer of (3 RR 37, 42). On August 28, 2010, Galyon in his capacity as a courtesy officer received a call from an unidentified individual about a possible disturbance. (3 RR 25). After receiving the call, Ladouceur v. State, No CR 5

11 Galyon looked outside from the window in his apartment and identified Appellant trying to get inside his girlfriend or wife s vehicle. (3 RR 26). Galyon left his apartment wearing a shirt that said State Trooper and caring his service weapon searching for the person he identified as Appellant. (3 RR 28). Galyon located Appellant upstairs talking on his phone. (3 RR 28). Galyon testified that he and Appellant had a conversation, and Appellant acknowledged that he knew he was not supposed to be at the apartment complex. (3 RR 29). During their conversation, Galyon noticed a pistol on the ground. (3 RR 30). Because of this fact, Galyon drew his pistol and ordered Appellant to step away from the pistol. (3 RR 30). Based on the situation, Galyon called the Denison Police Department for assistance. (3 RR 30). While on the phone with the Police Department, Appellant left the apartment complex on foot. (3 RR 30). Eventually, two Denison Police Officers arrived to the apartment complex. (3 RR 32). Galyon and the officer s searched the area trying to locate Appellant but was unable find him. (3 RR 32). Galyon provided Officer Benjamin Ray the pistol that was discovered at the apartment complex to place in evidence. (3 RR 48). The pistol was described as a Colt.25 with five rounds in the magazine and one in the chamber. (3 RR 48). Ladouceur v. State, No CR 6

12 POINT OF ERROR ONE: SUMMARY OF THE ARGUMENT The Appellant s conviction should be reversed because the evidence is legally insufficient to support a conviction for Criminal Trespass as the State failed to prove the Appellant received the essential criminal trespass element of notice. POINT OF ERROR TWO: The Appellant s conviction should be reversed because the evidence is legally insufficient to support a conviction for Criminal Trespass because the Trial Court charged the jury with the Class A Misdemeanor offense of Criminal Trespass in the punishment phase of trial, after the State abandoned the deadly weapon element when it read the information to the jury. Also, the State failed to show the gun was put to any use in the criminal trespass. POINT OF ERROR THREE: The Appellant s conviction should be reversed when the Trial Court abused its discretion when it failed to grant a mistrial for the State violating the Trial Court s ruling on the motion in limine. Specifically, the State elicited an extraneous act through its questing before the jury.. POINT OF ERROR FOUR: The Appellant s conviction should be reversed when the Trial Court abused its discretion by admitting pictures of Appellant s tattoos for the purpose of identification. The State did not need the pictures to prove identification of Appellant when Galyon made an in court identification. Ladouceur v. State, No CR 7

13 POINTS, ARGUMENTS, AND AUTHORITIES POINT OF ERROR ONE: The Appellant s conviction should be reversed because the evidence is legally insufficient to support a conviction for Criminal Trespass as the State failed to prove the Appellant received the essential criminal trespass element of notice. Argument and Authorities In reviewing a claim of legal insufficiency, the appellate court reviews the evidence in a light most favorable to the verdict and determines whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App.2002). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). The evidence is legally insufficient to support the conviction. The jury had to find that Ladouceur intentionally or knowingly entered or remained on the property of another, namely Teri Cooley or Kevin Gaylon, without the effective consent of the said Teri Cooley or Kevin Gaylon, and Ladouceur had notice that entry was forbidden. Significantly, the evidence adduced at trial was legally insufficient to establish that Appellant received notice from the owner of the property, or someone with apparent authority to act for the owner. Ladouceur v. State, No CR 8

14 A person commits the act of criminal trespass if he enters or remains on property of another without effective consent and he had notice that the entry was forbidden or he received notice to depart but failed to do so. TEX.PENAL CODE ANN., Notice includes oral or written communication by the owner or someone with apparent authority to act for the owner. Id. Texas law defines owner as a person who has title to the property, possession of the property, or a greater right to possession of the property than the actor. TEX. PEN.CODE ANN. 1.07(a)(35). Apparent authority is determined by whether there is such conduct on the part of the principal as would lead a reasonably prudent person using diligence and discretion to believe that the agent had authority to act for the principal. J.O. Lockridge General Contractors, Inc. v. Morgan, 848 S.W.2d 248, 250 (Tex. App. Dallas 1993, writ denied). In determining whether apparent authority exists only the conduct of the principal is relevant; thus, a court examines the conduct of the principal and the reasonableness of the third party's assumptions about authority. Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907 (Tex. App. Dallas--2008). Importantly, before a defendant can be convicted of criminal trespass, the jury must be required to find that the defendant had the requisite notice. Salazar v. State, 284 S.W.3d 874 (Tex.Crim.App. 2009). In the present case no such notice was given to Appellant by an owner or person acting with apparent authority on behalf of an owner. The state s argument relies wholly on the premise that Appellant was given a proper criminal trespass warning by Gaylon and Cooley acting with apparent authority on June 20, Such an argument is unsupported Ladouceur v. State, No CR 9

15 by the record in this case. In fact, such an argument is inconsistent with testimony elicited from State witness Gaylon at trial. According to Galyon, he did not have authority from Robert Rumsey, the alleged owner of the property, to issue criminal trespass warnings on July 20, (3 RR 38, 41). Specifically, Gaylon stated that he did not receive authority from the owner to issue criminal trespass warnings until the summer of (3 RR 37, 42). This fact is further substantiated by Gaylon s police report in which there was no mention that he issued a criminal trespass warning to Appellant. (3 RR 41). Moreover, the record is completely void of testimony from Cooley, Rumsey, or any other witnesses that could support States argument that Appellant received notice from an owner or person acting with apparent authority on behalf of the owner. In the present case, the record contains insufficient evidence for a rational juror to conclude beyond a reasonable doubt that Appellant received the essential criminal trespass element of notice. Given this, the evidence was legally insufficient to support the juries verdict and Appellant s Motion for a Directed verdict should have been granted. POINT OF ERROR TWO: The Appellant s conviction should be reversed because the evidence is legally insufficient to support a conviction for Criminal Trespass because the Trial Court charged the jury with the Class A Misdemeanor offense of Criminal Trespass in the punishment phase of trial, after the State abandoned the deadly weapon element when it read the information Ladouceur v. State, No CR 10

16 to the jury. Also, the State failed to show the gun was put to any use in the criminal trespass. Argument and Authorities In reviewing a claim of legal insufficiency, the appellate court reviews the evidence in a light most favorable to the verdict and determines whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App.2002). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). A person commits the offense of Criminal Trespass if the person enters or remains on or in the property of another, including residential land, agriculture land, a recreational vehicle park, a building, or an aircraft or other vehicle, without the effective consent and the person: 1) had notice that the entry was forbidden; or 2) received notice to depart but failed to do so. An offense under this section is a Class A Misdemeanor if the person carries a deadly weapon during the commission of the offense. nd The 2 Motion to Amend Information alleges that the Appellant did the following: th...on or about the 28 day of August, 2010 A.D., and anterior to the making of this complaint, in the County of Grayson, and State of Texas, David Ladouceur did then and there intentionally or knowingly enter or remain on property of another, namely Teri Cooley or Kevin Galyon, without the effective consent of the said Teri Cooley or Kevin Galyon, and the said defendant had notice that entry was forbidden... And the defendant did then and there carry a deadly weapon during the commission of the offense. (CR, 50-51). nd The 2 Motion to Amend Information was granted by the trial court. (CR, 64). Ladouceur v. State, No CR 11

17 Pursuant to Article 36.01(a)(1) the reading of the information is mandatory. Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App.1985). On February 29, 2012, the State read the following information to the jury: This is the information, this is the charging instrument in this case. In the name and by authority of the State of Texas: The undersigned, Criminal District Attorney of Grayson County, Texas, upon the written complaint of Terry Dunn, being filed herewith, comes on behalf of the State of Texas and presents in and to the County th Court at Law of Grayson County, State of Texas, that on or about the 28 day of August, 2010 A.D., and anterior to the making of this complaint, in the County of Grayson, and State of Texas, David Ladouceur did then and there intentionally or knowingly enter or remain on property of another, namely Teri Cooley or Kevin Galyon, without the effective consent of the said Teri Cooley or Kevin Galyon, and the said defendant had notice that entry was forbidden, against the peace and dignity of the State. (3 RR 11-12). The State of Texas abandoned the deadly weapon element of the Class A Misdemeanor Criminal Trespass. During the course of the testimony of Ray, the State moved to offer State s Exhibit 1 a Colt.25 pistol. (3 RR 45-47). Counsel for Appellant objected and a hearing was held outside the presence of the jury. (3 RR 46). Counsel for Appellant argued that the State abandoned the deadly weapon when he was arraigned in the presence of the jury. (3 RR 45-46). The State argued that the Deadly Weapon was an enhancement. (3 RR 46). The Trial Court overruled the objection. (3 RR 47). A deadly weapon means: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. 1.07(a)(17)(A) & (B). In this case, the State of Texas alleges the Colt.25 Ladouceur v. State, No CR 12

18 was a Deadly Weapon. (3 RR 45-47). Mere possession of a weapon without putting it to any use or purpose whatsoever is not the same as using the weapon. Tyra v. State, 897 S.W.2d 796, 798 (Tex.Crim.App.1995). All felonies are susceptible of an affirmative deadly weapon finding for the purposes of denial of community supervision and limitation of parole eligibility pursuant to Article g(a)(2) of the Code of Criminal Procedure. Morgan v. State, 775 S.W.2d 403, 406 th (Tex.App.-Houston [14 Dist.] 1989, no pet). Misdemeanors are not susceptible of an affirmative deadly weapon finding by virtue of the statutes. An example would be a Misdemeanor Driving While Intoxicated Case. Because of this fact, the deadly weapon referred in the criminal trespass statute is not finding, but an element of the offense. As a result of the State abandoning the deadly weapon element, the Punishment change was legally insufficient to support the verdict. Alternatively, the record in this case is void that a weapon was put to use in the commission of the offense (i.e. was not displayed, pointed, or directed at an individual, was not utilized to gain access to an area he was not permitted, the state failed to prove a connection between the Appellant and the gun in the course of committing a criminal tresspass. Ladouceur v. State, No CR 13

19 POINT OF ERROR THREE: The Appellant s conviction should be reversed when the Trial Court abused its discretion when it failed to grant a mistrial for the State violating the Trial Court s ruling on the motion in limine. Specifically, the State elicited an extraneous act through its questing before the jury. Argument and Authorities Appellant contends the trial court erred by failing to grant a mistrial for the State violating Appellant s motion in limine regarding extraneous bad acts. (CR, 36-38). The denial of a motion for mistrial is reviewed under the standard of abuse of discretion. Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App.1999). Motions in limine do not preserve error. Webb v. State, 760 S.W.2d 263, 275 (Tex.Crim.App.1988). A ruling on a motion in limine does not purport to be one on the merits but a ruling regarding administration of the trial. Harnett v. State, 38 S.W.3d 650, 655 (Tex.App.-Austin 2000, pet. ref'd). The remedy for a violation of a ruling on a motion in limine rests with the trial court. Brazzell v. State, 481 S.W.2d 130, 131 (Tex.Crim.App.1972). The trial court may hold the litigant or attorney in contempt or use other remedies or sanctions. Harnett, 38 S.W.3d at 655. Even if there has been a violation of the order on the motion in limine, a party must object to the admission or exclusion of evidence or other action in order to preserve error for appeal as to the evidentiary ruling. Id. To preserve error for appellate review, a party must make a timely, specific objection; Ladouceur v. State, No CR 14

20 the objection must be made at the earliest possible opportunity; the complaining party must obtain an adverse ruling from the trial court, and the issue on appeal must correspond to the objection made at trial. Tex.R.App. P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App.1998). Three steps are necessary to preserve error as to an adverse trial court ruling regarding evidence admitted or placed before the jury: a specific, timely objection, a request for an instruction to disregard and a motion for mistrial. Fuller v. State, 827 S.W.2d 919, 926 (Tex.Crim.App.1992). To preserve error, the specific objection must be pressed to the point of obtaining an adverse ruling, whether that is a ruling on the objection, the request that the jury be instructed to disregard the evidence, or the motion for mistrial. Id. The exact sequencing of the procedural steps is not so critical as is the fact that the movant persists in seeking all available relief from the trial court, until the trial court effectively denies relief to which the movant is entitled. Id. And, in regard to the sequencing of requests for all available relief, it has been held that the sequence of requesting a mistrial, which request was overruled, followed by requesting an instruction to disregard which was granted was sufficient to preserve error as to the failure to grant a mistrial. Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App.1984). Mistrial is an extreme remedy which is appropriate only when the objectionable event is so emotionally inflammatory that a curative instruction is not likely to prevent the jury from being unfairly prejudiced against the defendant. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App.1996). Testimony referring to extraneous offenses can be rendered harmless Ladouceur v. State, No CR 15

21 by an instruction to disregard, unless it is so clearly calculated to inflame the minds of the jury and is of such a nature as to suggest the impossibility of withdrawing the impression produced. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App.1992); Huffman v. State, 746 S.W.2d 212, 218 (Tex.Crim.App.1988). The violation of Appellant s motion in limine occurred when the State reopened their case and recalled Galyon. (3 RR 67). The prosecutor asked Galyon: Q. Okay. Now, there s testimony entered now that the gun was actually dropped there by Lorena Ladouceur somehow, and that the defendant just happened to be standing over it, do you believe that to be accurate testimony? A. No. Q. Why is that? A. Because I had evidence before that he liked to carry a pistol. (3 RR 71). Counsel for Appellant objected that the question went beyond the motion in limine. (3 RR 71). The court instructed the State to approach the bench and sustained the objection. (3 RR 71). Counsel requested the jury to disregard the statement, and the made the requested instruction. (3 RR 71). Counsel made a request for a mistrial that was overruled. (3 RR 72). In this case, the trial court abused its discretion in failing to grant a mistrial because the State did not approach the bench prior to testimony of extraneous offense being elicited in front of the jury. The trial court granted each objection and motion made by Appellant, except granting a mistrial. Given the nature of the evidence, the manner in which the State Ladouceur v. State, No CR 16

22 elicited the testimony from an experienced law enforcement officer, the remedy by the court was not a reasonable response. The trial court abused its discretion in refusing to grant a mistrial. POINT OF ERROR FOUR: The Appellant s conviction should be reversed when the Trial Court abused its discretion by admitting pictures of Appellant s tattoos for the purpose of identification. The State did not need the pictures to prove identification of Appellant when Galyon made an in court identification. Arguments and Authorities Appellant contends the trial court erred by admitting photographic evidence of Appellant s tattoos over his Rule 403 objection to State s exhibits 2 and 3. (3 RR 21-22). Appellant argues that the probative value gained from showing the photographic evidence is outweighed by the prejudicial effect based on the numerous tattoos covering Appellant s face and head. (3 RR 22). Rule 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex.R.Crim.Evid Rule 403 does not authorize exclusion of evidence because it creates prejudice; it Ladouceur v. State, No CR 17

23 authorizes exclusion of evidence only if it creates unfair prejudice that substantially outweighs its probative value. Gonzales v. State, 838 S.W.2d 848, 862 (Tex.App. Houston [1st Dist.] 1992, pet. dism'd). Rule 403 favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App.1990) (op. on reh'g). In close cases, the trial court should favor the admission of evidence, in keeping with the presumption of the admissibility of relevant evidence. Id. In determining whether the trial court abused its discretion the following factors should be considered: 1) Whether the ultimate issue to which the evidence was relevant was seriously contested; 2) Whether the State had other convincing evidence to establish the ultimate issue to which the evidence was relevant; and 3) Whether the probative value of the evidence was compelling. Montgomery, 810 S.W.2d at ; Gonzales, 838 S.W.2d at 863. It is assumed that the trial court concluded the tattoos were relevant to show identity. (3 RR 22). However, prior to the admission of the photographic evidence (Exhibits 2 & 3), Galyon made an in court identification of Appellant. (3 RR 20-21). Therefore, the State had some convincing evidence other than the tattoos to prove identity. This factor of Montgomery weighs against admission of the evidence. Finally, the question is whether the probative value of the evidence is compelling. Again, Galyon made an in court identification without the need of photographic evidence to Ladouceur v. State, No CR 18

24 identify Appellant. (3 RR 20). The photographic evidence was not compelling to prove identity. This factor of Montgomery weighs against admission of the evidence. Understanding that the trial court should favor the admission of relevant evidence. The evidence in this case was not relevant and its probative value is substantially outweighed by the danger of unfair prejudice, in proving identity or any other admissible reason under the Montgomery factors. CONCLUSION AND PRAYER FOR RELIEF The Appellant s conviction should be reversed because the evidence is legally insufficient to support a conviction for Criminal Trespass as the State failed to prove the Appellant received the essential criminal trespass element of notice. The Appellant s conviction should be reversed because the evidence is legally insufficient to support a conviction for Criminal Trespass because the Trial Court charged the jury with the Class A Misdemeanor offense of Criminal Trespass in the punishment phase of trial, after the State abandoned the deadly weapon element when it read the information to the jury. Also, the State failed to show the gun was put to any use in the criminal trespass. The Appellant s conviction should be reversed when the Trial Court abused its discretion when it failed to grant a mistrial for the State violating the Trial Court s ruling on the motion in limine. Specifically, the State elicited an extraneous act through its questing before the jury. The Appellant s conviction should be reversed when the Trial Court abused its Ladouceur v. State, No CR 19

25 discretion by admitting pictures of Appellant s tattoos for the purpose of identification. The State did not need the pictures to prove identification of Appellant when Galyon made an in court identification. WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that this Court will reverse his conviction and sentence and for further relief as he may show himself deserving, at law and in equity. Respectfully submitted, JOHN HUNTER SMITH SBN: WYNNE & SMITH 707 W. WASHINGTON SHERMAN, TEXAS Tel. (903) Fax (903) THOMAS P. WYNNE SBN: MILNER FINN PRICE 2828 N. HARWOOD ST., SUITE 1950 DALLAS, TEXAS Tel. (214) Fax (214) ATTORNEYS FOR APPELLANT Ladouceur v. State, No CR 20

26 CERTIFICATE OF SERVICE This is to certify that a copy of this brief has been forwarded to Ms. Carla Baugh, Grayson County District Attorney s Office, 200 S. Crockett, Sherman, Texas on the th 15 day of June, JOHN HUNTER SMITH Ladouceur v. State, No CR 21