NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. JAMES PAUL DOWNEY, Appellant. THE STATE OF TEXAS, Appellee

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1 NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS JAMES PAUL DOWNEY, Appellant v. THE STATE OF TEXAS, Appellee ON APPEAL FROM THE COUNTY CRIMINAL COURT NO.9 OF DALLAS COUNTY, TEXAS BRIEF FOR THE APPELLANT MARK T. FALCON State Bar No Legal Chambers of Mark T. Falcon 531 Forsythe Dr. Dallas, Texas ATTORNEY FOR JAMES PAUL DOWNEY ORAL ARGUMENT IS REQUESTED 0

2 IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties to the trial court's final judgment, as well as the names and addresses of all trial and appellate counsel. 1. Defendant and Appellant, James Paul Downey, whose attorney at the time of trial and on appeal is Mr. Mark T. Falcon, Legal Chambers of Mark T. Falcon, 531 Forsythe Dr., Dallas, Texas Plaintiff and Appellee, The State of Texas, whose trial counsel was Mr. Austin Ortiz and Mr. Travis Wiles, Dallas District Attorney s Office, 133 N. Industrial Blvd. LB 19, Dallas, Texas Appellate counsel for the Appellee is unknown by Appellant s attorney and believes that counsel for the Appellee has been unassigned by the Dallas District Attorney s Office at this point in time. 1

3 TABLE OF CONTENTS Content: Page IDENTITY OF PARTIES AND COUNSEL 1 INDEX OF AUTHORITIES 3 STATEMENT OF THE CASE 4 ISSUES PRESENTED 4 STATEMENT OF FACTS 5 SUMMARY OF THE ARGUMENT 6 ARGUMENT AND AUTHORITIES 6 1. Under Texas Rule of Evidence 404(b) did the trial judge, in admitting testimony of the arresting officer concerning a subsequent encounter with Mr. Downey unrelated to this case, commit reversible error, and did such error affect a substantial right of Mr. Downey? PRAYER 12 CERTIFICATE OF SERVICE 13 2

4 INDEX OF AUTHORITIES CASES: Page Albrecht v. State, 486 S.W.2d 97, 100 7,9 (Tex.Crim.App. 1972). Harris v. State, 790 S.W.2d 568, (Tex.Crim.App. 1989). Johnson v. State, 967 S.W.2d 410, (Tex.Crim.App. 1998). King v. State, 953 S.W.2d 266, (Tex.Crim.App. 1997). Kotteakos v. State, 328 U.S. 750, 765 (1946). 11 Leos v. State, 883 S.W.2d 209, (Tex.Crim.App. 1994). Mitchell v.state, 931 S.W.2d 950, (Tex.Crim.App. 1996). Motilla v. State, 78 S.W.3d 352, ,11 (Tex.Crim.App. 2002). Santellan v. State, 939 S.W.2d 155, (Tex.Crim.App. 1997). Soffar v. State, 742 S.W.2d 371, (Tex.Crim.App. 1987). Solomon v. State, 49 S.W.3d 356, (Tex.Crim.App. 2001). Welch v.state, 993 S.W.2d 690, (Tex.App.-San Antonio 1999, no pet.) TEXAS CONSTITUTION, STATUTES, AND RULES: Page Rule 404(b) of the Texas Rules of Evidence 6,7,9 Rule 44.2(b) of the Texas Rules of Appellate Procedure 9,10 3

5 STATEMENT OF THE CASE In Cause No. MB K, Appellant, James Paul Downey, appeals judgment for Driving while Intoxicated 1 st. (CR 15). Appellant filed a Motion for New Trial on October 22, 2008, said motion which the Judge did not set for hearing and was deemed overruled. (CR 13). Appellant, then filed a notice of appeal on December 10, 2008, thereby timely perfecting this appeal. (CR 12). ISSUE PRESENTED 1. Under Texas Rule of Evidence 404(b) did the trial judge, in admitting testimony of the arresting officer concerning a subsequent encounter with Mr. Downey unrelated to this case, commit reversible error, and did such error affect a substantial right of Mr. Downey? 4

6 STATEMENT OF FACTS This appeal consists of a DWI 1 st case in which Mr. Downey was found guilty by a jury. (R.R. Vol.10 Pg.5). Defense counsel filed and argued to the trial judge pretrial motions objecting to any testimony by the arresting officer in this case, Officer Cathcart, pertaining to any subsequent contact/encounter/arrest with Mr. Downey, which the trial judge granted. (R.R. Vol.2 Pg.10 Ln.16). The trial judge, despite defense counsel s pretrial motions objecting to testimony of the arresting officer concerning subsequent contact/arrest with Mr. Downey, and the judge s granting of same, nonetheless, permitted the officer to give testimony regarding a subsequent encounter with Mr. Downey, which was completely unrelated to the offense for which Mr. Downey was on trial for. (R.R. Vol.8 Pg.7 Ln.17-22). Mr. Downey, having been found guilty, was sentenced to 180 days confinement in the Dallas County Jail, the imposition of the sentence which was to be suspended by placing Mr. Downey on community supervision, and a $1,000 fine. (R.R. Vol.10 Pgs.93-94). The trial judge, thereafter, imposed a community supervision period of 15 months. (R.R. Vol.10 Pg.96). 5

7 SUMMARY OF THE ARGUMENT The trial judge committed reversible error in allowing testimony by the arresting officer of a subsequent encounter with Mr. Downey which is precluded by Rule 404(b) of the Texas Rules of Evidence, and which amounted to an abuse of discretion. (R.R. Vol.8 Pg.7 Ln.17-22). Because of the admission of this erroneous testimony by the arresting officer, harm resulted in that it can be reasonably inferred that this testimony had an influence in determining the jury s verdict, which affected a substantial right of Mr. Downey. ARGUMENT AND AUTHORITIES 1. Under Texas Rule of Evidence 404(b) did the trial judge, in admitting testimony of the arresting officer concerning a subsequent encounter with Mr. Downey unrelated to this case, commit reversible error, and did such error affect a substantial right of Mr. Downey? Rule 404(b) of the Texas Rules of Evidence indicates the well-established principle that the accused should not be tried for some collateral crime or for being a criminal generally. Soffar v. State, 742 S.W.2d 371, 377 (Tex.Crim.App. 1987). Rule 404(b) of the Texas Rules of Evidence, states, in relevant part as follows: 6

8 (b) Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Evidence regarding other crimes, wrongs, or acts is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him. Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App. 1972). Standard of Review Abuse of Discretion A trial court s decision to permit the admission of extraneous offense evidence is reviewed by the appellate court with an abuse of discretion standard. Mitchell v.state, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996); Welch v.state, 993 S.W.2d 690, 697 (Tex.App.-San Antonio 1999, no pet.) The trial court s decision must be reasonable in light of all facts which are relevant. Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997). Counsel for the Appellant, even before trial began and before voir dire, made it readily apparent to the trial judge, through pre-trial motions and argument, the risk of permitting testimony from the arresting officer in 7

9 this case regarding any subsequent contact with Mr. Downey. (R.R. Vol.2 Pgs.8-11 & 18-19). Because the arresting officer Cathcart testified to effectuating over 3,000 DWI arrests, it is a reasonable and likely inference that a juror, once exposed to the testimony concerning the officer s subsequent longer encounter with Mr. Downey while on police patrol, would believe the subsequent encounter to be for another DWI arrest. The germane testimony of the arresting officer occurred as follows: Q Why is it that you have an independent recollection of this case? A Approximately four months later after this incident, I has another encounter with the Defendant. Q All right. Now, was that encounter something like a 30-second encounter, or was that a little bit longer of an encounter? A It was a good bit longer than that. (R.R. Vol.8 Pg.7 Ln.15-22). This testimony arguably was of such a prejudicial effect, that there was relatively a certainty of conviction. Said testimony further was highly prejudicial and served to create an impression that Mr. Downey was a 8

10 criminal generally who even had more than one encounter with the same arresting officer. As noted in, Albrecht v. State, evidence regarding other crimes, wrongs, or acts is inherently prejudicial. 486 S.W.2d 97, 100 (Tex.Crim.App. 1972). This is exactly the kind of error which Rule 404(b) is made to prevent, in that the officer s testimony concerning the subsequent encounter with Mr. Downey did not arise out of the offense, nor was connected in any respect with the offense for which Mr. Downey was on trial for. It is for these reasons, that Appellant contends that the trial court s allowance of the arresting officer s testimony as previously indicated, was an abuse of discretion. Appellant s counsel would further note to this court that there is nothing in the Clerk s Record which indicates that the State ever filed with the trial court a Notice of Intent to use Evidence of other Crimes, Wrongs, or Acts pursuant to Rule 404(b) of the Texas Rules of Evidence, despite Mr. Downey s Pre-trial Motion No. 20 seeking timely notice of such evidence under 404(b). (CR 101). Harm Analysis pursuant to Texas Rule of Appellate Procedure 44.2(b) 9

11 Rule 44.2(b) of the Texas Rules of Appellate Procedure, states in relevant part as follows: (b) Other errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. In, King v. State, the Texas Court of Criminal Appeals explained that a substantial right is affected in cases where the error had a substantial and injurious effect, or influence in determining the jury s verdict. 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). The question is whether the jury might have been influenced by an error. Harris v. State, 790 S.W.2d 568, (Tex.Crim.App. 1989). When examining the likelihood that the jury s verdict was adversely affected by the error, the court of appeals should consider the record as a whole, including any testimony or physical evidence which was admitted for juror consideration, the nature of the evidence supporting the verdict, the character of the error, and how the error might be considered in relation to other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). 10

12 The substantial rights of the accused are not affected by the erroneous admission of evidence, if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). If one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. Kotteakos v. State, 328 U.S. 750, 765 (1946). The Court of Criminal Appeals has further stated, the mere fact that overwhelming evidence in fact supports the conviction, does not, in and of itself, indicate that error was harmless. Leos v. State, 883 S.W.2d 209, 212 (Tex.Crim.App. 1994). Rather, the relative strength of the State s case is but one factor among several. Motilla v. State, 78 S.W.3d 352, (Tex.Crim.App. 2002). In examining the harm analysis herein, careful consideration must be given to the arresting officer s testimony which was admitted for juror consideration, in which the officer testified to having another encounter with Mr. Downey four months later after the incident for 11

13 which Mr. Downey was on trial for, and that this subsequent encounter was of a significant length of time. (R.R. Vol.8 Pg.7 Ln.17-22). It can be reasonably inferred that the erroneously admitted testimony of the arresting officer had an influence in determining the jury s verdict, which was not of a slight effect, and certainly, at a minimum, there does not exist a fair assurance that the error did not influence the jury. Furthermore, the officer s testimony might have prejudiced the jury s consideration of the other evidence in this case. For example, once the jury upon hearing testimony of the officer s subsequent encounter with Mr. Downey, and knowing that he was on trial for DWI, the jury could deduce that Mr. Downey was arrested for another DWI subsequent to the DWI for which he was on trial for given that the officer testified to effectuating over 3,000 DWI arrests, which supports the fact that harm occurred. It is for these reasons that prejudice existed, which rendered the jury incapable of rendering an impartial verdict. PRAYER For the foregoing reasons Appellant, Paul James Downey, respectfully requests that this Court reverse the trial court s judgment and remand the case for a new trial. 12

14 Appellant also respectfully requests any other relief, both at law and in equity, general and specific, to which he may be justly entitled. Respectfully submitted, Legal Chambers of MARK T. FALCON 531 Forsythe Dr. Dallas, Texas Phone No Facsimile No State Bar No ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE This certifies that on the 6 th day of November, 2009, the undersigned served said document, Appellant s Brief, on The State of Texas, Appellee, by sending it first class mail to Craig Watkins, Dallas County District Attorney s Office located at Frank Crowley Courts Building 133 N. Industrial Blvd., LB 19 Dallas, Texas MARK T. FALCON Attorney for Appellant 13

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