Case Information
*0 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 1/27/2015 11:55:21 AM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-13-00349-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 1/27/2015 11:55:21 AM DORIAN RAMIREZ CLERK CAUSE NO. 13-13-00349-CR IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT AT CORPUS CHRISTI, TEXAS ADRIAN BARRERA, APPELLANT
vs. THE STATE OF TEXAS, APPELLEE
ON APPEAL FROM THE 138th DISTRICT COURT TRIAL COURT CASE NUMBER 2011-DCR-2796-B ____________________ APPELLANT'S REPLY BRIEF ________
ORAL ARGUMENT REQUESTED Philip T. Cowen
Law Office of Philip Cowen 500 E. Levee Street Brownsville, Texas
Tel. 956-541-1691
Fax. 956-541-6872 State Bar Number: 24001933 ATTORNEY FOR APPELLANT January 27, 2015
_______________________________________ *2 TABLE OF CONTENTS Page Table of Authorities.......................................................................... iii Notice of Parties................................................................................ iv Statement on Oral Argument............................................................. v Preliminary Statement....................................................................... 1 Statement of Facts............................................. .............................. 2 Issues Presented ..... ...................................................................... 3 Summary of the Argument................................................................. 4 Argument............................................................................................ 5 Issue#1. The State Mis-characterizes the Evidence and the Rule when....... 5
it argues that because the state decides to dismiss a charge after indictment, the
accomplices will never be accomplices as a matter of law.
Issue#2. The State’s points on Issues 2 through 8 are merely distractions,.... 7
attempting to get this court to ignore the law and facts of the issue. Appellant
stands by his brief and his framing of the issues and ask this court to overturn his
conviction.
Prayer for Relief .................................................................................. 7 Certificate OF Service............................................................................ 8 Certificate of Compliance...................................................................... 9 ii
TABLE OF AUTHORITIES State Cases
Chastain v. State, 97 Tex. Crim. 182, 260 S.W. 172 (1924).............. 5
Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991)............... 5
Herrera v. State, 115 Tex. Crim. 526, 27 S.W.2d 211 (1930)........... 5
Smith v. State, 332 S.W.3d 425 (Tex. Crim. App. 2011)................. 5
Solis v. State, 792 S.W.2d 95 (Tex. Crim. App. 1990).....................
iii
NOTICE OF PARTIES: Appellant informs the Court that the following persons have an interest in
this case.
Hon. Luis Saenz
State Bar No.
Cameron County District Attorney
Hon. Rene Gonzalez
State Bar No. 08131380
Hon. Gustavo Garza
State Bar No. 07731700
Hon. Art Teniente
State Bar No. 24070730
Cameron County District Attorney’s Office
964 E. Harrison
Brownsville, Texas
Hon. Jennifer Avendano State Appellant Attorney
State Bar No. 19058400
Cameron County District Attorney
974 E. Harrison
Brownsville, Texas 78520
Tel. (956) 544-0849
Fax (956) 544-0859
Hon. Dan Sanchez
State Bar . 24004064
501 E, Tyler
Harlingen, Texas 78520
Tel. 956-425-5297
Fax 956-399-0706
Philip T. Cowen
State Bar No. 24001933
500 E. Levee St.
Brownsville, Texas 78520
Tel. 956-541-1691
Fax 956-541-6872
iv *5 Statement on Oral Argument A good discussion between the parties and this court will help sort out the equities in order for this court to appropriately fashion appropriate remedies.
Issues 5 and 8 are unusual, and there does not seem to be very much recent case
law concerning these issues. A Cameron County jury convicted a person for
murder a few years ago, and the legislature responded by removing probation from
consideration by the jury and judge. Now, the new law catches up with us and an
error took place because no one remembered the law had changed, and jurors were
improperly stricken because they could not grant probation if a person was
convicted of murder. The prohibition in Rule of Evidence 605 is still an open
question in case law, at least as to what is the functional equivalent of testimony.
This court should find oral argument useful in making a determination as to how
to be handle these issues, as well as the other issues in this case.
v *6 CAUSE NO. 13-13--00349-CR IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT AT CORPUS CHRISTI, TEXAS ADRIAN BARRERA, APPELLANT
vs. THE STATE OF TEXAS, APPELLEE
ON APPEAL FROM THE 138th DISTRICT COURT TRIAL COURT CASE NUMBER 2011-DCR-2796-B ____________________ TO THE HONORABLE JUSTICES OF THIS COURT:
Comes now, ADRIAN BARRERA, hereinafter referred to as Appellant or Barrera, who submits this brief, pursuant to the provisions of the Texas Rules of
Appellate Procedure, in support of his request for a judgment of acquittal, and, in
the alternative his request for a new trial and other remedies, in cause number
2011-DCR-2796-B.
Preliminary Statement The preliminary statement in the original brief is adopted for purposes of this reply brief.
Statement of Facts The Statement of Facts in the original brief is adopted for purposes of this reply brief.
STATEMENT OF THE ISSUES Issue#1. The State Mis-characterizes the Evidence and the Rule when it argues that because the state decides to dismiss a charge after indictment, the
accomplices will never be accomplices as a matter of law.
Issue#2. The State’s points on Issues 2 through 8 are merely distractions, attempting to get this court to ignore the law and facts of the issue. Appellant
stands by his brief and his framing of the issues and ask this court to overturn his
conviction.
SUMMARY OF THE ARGUMENT Appellant stands by his issues in his original brief. He argues that the state mis-characterizes the facts and rule concerning accomplice witnesses, and that the
state should not be able to circumvent the rule by dropping charges in order to
sanitize testimony.
ARGUMENT
Issue#1. The State Mis-characterizes the Evidence and the Rule when it argues
that because the state decides to dismiss a charge after indictment, the accomplices
will never be accomplices as a matter of law.
Certainly if there is no evidence in a case that witness are accomplices, then they are not accomplices. In this case, very simply, three co-defendants were
charged by indictment with the same murder as Appellant was charged with, and
for that reason an accomlice witness instruction was appropriate. One of them was
convicted, sentenced, served a sentence of probation, and then had it set aside on a
writ. The state, in its brief, admits that a witness who is indicted for the same
offense or a lesser-included offense as the accused is an accomplice as a matter of
law. Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991); Solis v. State ,
792 S.W.2d 95, 97 (Tex. Crim. App. 1990); Herrera v. State, 115 Tex. Crim. 526,
27 S.W.2d 211,212 (1930); Chastain v. State, 97 Tex. Crim. 182, 260 S.W. 172,
173 (1924). The State contents that Smith v. State indicates that an accomplice is
no longer an accomplice if the state abandons the indictment against the
accomplice before he or she testifies. Smith v. State, 332 S.W.3d 425, 439-40
(Tex. Crim. App. 2011). In that case, the Court of appeals did not get to that
question. It is thus still not the law of the state that a person who was charged and
indicted and then had the charges dismissed are not accomplices as a matter of law
if the charges are dismissed before the person testifies. The purpose of the rule is
met, as here, when the state chooses to indict a person, and not, as later, when the
state seeks to structure the trial of a defendant and then proceed to sanitize the
accomplices by dismissing the charge in order to have them testify substantively
against a defendant. This later scenario would undercut a great part of the
accomplice witness rule by having defendants bargain away their crimes, and for
the state to remain forever mum about the deal, in exchange for getting the biggest
bad guy. This is what happened in this case. The state wants to make its version of
Smith the rule. That is not the rule, and this court should not make it the law of the
land.
In the last point, on this issue, the state argues that because defense counsel did not ask for an accomplice witness instruction requiring the jury to determine
first if the witnesses were accomplishes the error was not preserved for appeal.
Appellant response that a request for an accomplice witness instruction is
sufficient to clue a trial court as to the fact that the jury is to determine whether
someone is an accomplice. The defense does not have to get into the finer points
of accomplice witness law to preserve error. The trial court, if it has any basis for
handing the issue to the jury, and an accomplice witness instruction is requested,
must charge to the jury, in some fashion, in order to meet the purposes of the
statute.
Issue#2. The State’s points on Issues 2 through 8 are merely distractions, attempting to get this court to ignore the law and facts of the issue. Appellant
stands by his brief and his framing of the issues and ask this court to overturn his
conviction.
Conclusion Appellant stands by his brief and his framing of the issues and ask this court to overturn his conviction.
PRAYER Issue 1 requires an acquittal if the court finds no corroborating evidence other than accomplice witness testimony. If not, it requires remand for retrial as
the jurors were not informed as to the true nature of the accomplices when they
testified as ordinary witnesses.
Issue 2, 3, 5, and 8 requires reversal and remand for retrial. And, Issue 6 and 7 require remand for re-sentencing. However, because the evidence is
insufficient to convict, following Issue 4, Barrera must be acquitted.
Respectfully Submitted by, ____/s/Philip T. Cowen___ Philip T. Cowen
Law Office of Philip Cowen 500 E. Levee St.
Brownsville, Texas 78520 Tel. 956-541-6031
Fax 956-541-6872
email: ptchb@att.net
CERTIFICATE of SERVICE This is to certify that on January 27, 2015 a true and correct copy of the above and foregoing document was served on the District Attorney's office, the
Hon. Jennifer Avendano, Cameron County, 974 E. Harrison St., Brownsville,
Texas 78520, by email.
____/s/Philip T. Cowen____ Philip T. Cowen
Certificate of Compliance I certify that this brief was prepared with WordPerfect X4, in Time New Roman 14 point type for the body of the brief, and 12 point type for footnotes and
long quotations from the transcript or from cases.
I also certify that, according to the Wordperfect X4 program's word-count function, the sections covered by TRAP 9.4(i)(1), (excluding any caption, identity
of parties and counsel, statement regarding oral argument, table of contents, table
of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance) contains 599 words.
The pdf copy of this brief was scanned for viruses, and was found to be virus free, using the latest version of Windows Security Essentials, Windows
Defender.
____/s/Philip T. Cowen____ Philip T. Cowen