Larry Donnell Boswell, Jr. v. State, 03-15-00540-CR

Larry Donnell Boswell, Jr. v. State

03-15-00540-CR

| Tex. App. | Dec 14, 2015

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Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/14/2015 2:45:26 PM JEFFREY D. KYLE Clerk

*1 ACCEPTED 03-15-00540-CR 8225614 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/14/2015 2:45:26 PM JEFFREY D. KYLE CLERK IN THE THIRD COURT OF APPEALS IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS AT AUSTIN, TEXAS

LARRY DONNELL BOSWELL, JR.§ LARRY DONNELL BOSWELL, JR.§

Appellant § Appellant

§ § CAUSE NO. 03-15-00540-CR § CAUSE NO. 03—15—00540-CR

V. § TRIAL COURT NUMBER 72,904 § TRIAL COURT NUMBER 72,904 V. § §

THE STATE OF TEXAS § THE STATE OF TEXAS

§ Appellee § Appellee

§ BRIEF OF APPELLANT BRIEF OF APPELLANT

Appealed from the 27 th Judicial District Court, Bell County, Texas Appealed from the 27"‘ Judicial District Court, Bell County, Texas

Hon. John Gauntt, presiding Hon. John Gauntt, presiding

COPELAND LAW FIRM COPELAND LAW FIRM P.O. Box 399 P.O. Box 399 Cedar Park, Texas 78613 Cedar Park, Texas 78613 Tel/Fax 512-215-8114 Tel/Fax 512-215-8114 Erika Copeland Erika Copeland State Bar No. 16075250 State Bar No. 16075250 Attorney for Appellant Attorney for Appellant

APPELLANT HEREBY REQUESTS ORAL ARGUMENT APPELLANT HEREBY REQUESTS ORAL ARGUMENT

*2 TABLE OF CONTENTS TABLE OF CONTENTS

Page Page

Table of Contents

i-vii

Table of Contents i-vii Index of Authorities

viii-xii

Index of Authorities viii-xii 1.

Identity of Parties and Counsel

1 . Identity of Parties and Counsel I-1 1 2.

Statement of the Case

3 2. Statement of the Case 3.

Background

3 3. Background 4.

Statement Regarding Oral Argument

8 4. Statement Regarding Oral Argument 5.

Issues Presented

9 5. Issues Presented

Issue One

A. Issue One

The trial court erred in admitting evidence The trial court erred in admitting evidence

of prior bad acts over defense counsel‘s of prior bad acts over defense counsel’s objections under

Texas Rules of Evidence 401,

objections under Texas Rules of Evidence 401, 402, 403 and 404(b)

. Specifically, counsel

402, 403 and 404(b). Speciﬁcally, counsel objected to testimony that Boswell was affiliated objected to testimony that Boswell was affiliated with any criminal street gang. with any criminal street gang. B.

Issue Two

B. Issue Two

The trial court abused its discretion by

denying Boswell‘s motion for new trial based on denying Boswell’s motion for new trial based on a

Brady

violation when the prosecution failed to a Brady violation when the prosecution failed to disclose a witness‘ history of reprimands while disclose a witness’ history of reprimands while serving as a police officer. serving as a police officer. C.

Issue Three

C. Issue Three

The trial court abused its discretion by The trial court abused its discretion by

denying Boswell‘s motion for new trial based on denying Boswell’s motion for new trial based on a

Brady

violation when the prosecution failed to a Brady violation when the prosecution failed to disclose

impeachment and bias evidence

disclose impeachment and bias evidence concerning a State‘s witness that included concerning a State’s witness that included evidence of a history of reprimands while the evidence of a history of reprimands while the witness served as a police officer. witness served as a police officer.

B.

Summary of the Arguments

11 Summary of the Arguments B. 11

TABLE OF CONTENTS, continued

*4 TABLE OF CONTENTS, continued

Page

Issue One-Restated

11 7. Issue One-Restated 11

The trial court erred in admitting evidence The trial court erred in admitting evidence

of prior bad acts over defense counsel‘s objections of prior bad acts over defense counsel’s objections under

Texas Rules of Evidence 401, 402, 403 and

under Texas Rules of Evidence 401, 402, 403 and 404(b)

. Specifically, counsel objected

to 404(b). Speciﬁcally, counsel objected to testimony that Boswell was affiliated with any testimony that Boswell was affiliated with any criminal street gang. criminal street gang. (A)

Statement of Pertinent Evidence

11 (A) Statement of Pertinent Evidence 11 (B)

Applicable Law

13 (B) Applicable Law 13

(1)

At trial, all relevant evidence is

(1) At trial, all relevant evidence is admissible unless excepted by

the

admissible unless excepted by the Constitution, statute or other rules. Constitution, statute or other rules. (2)

Evidence of other crimes wrongs, or

(2) Evidence of other crimes wrongs, or acts is not admissible to prove the character acts is not admissible to prove the character of a person in order to show conformity of a person in order to show conformity with the character. with the character. (3)

Relevant evidence may be excluded if

(3) Relevant evidence may be excluded if its probative value

is substantially

its probative value is substantially outweighed by a danger of unfair outweighed by a danger of unfair prejudice.

prejudice.

(C)

Standard of Review

15 (C) Standard of Review 15

(1)

A trial court‘s ruling is reviewed for

(1) A trial court’s ruling is reviewed for an abuse of discretion. an abuse of discretion. (2)

A trial court‘s ruling will be upheld if

(2) A trial court’s ruling will be upheld if within

the

zone of reasonable zone of within the reasonable disagreement.

disagreement.

TABLE OF CONTENTS, continued

*5 TABLE OF CONTENTS, continued

Page

(D)

Argument

15 (D) Argument 15

(1)

Evidence

of Boswell‘s gang (1) Evidence of Boswell’s gang membership was not relevant. membership was not relevant.

(a)

Gang affiliation evidence had

(a) Gang afﬁliation evidence had no tendency to make probable the no tendency to make probable the existence of any fact of consequence. existence of any fact of consequence. (b)

Gang

affiliation evidence (b) Gang afﬁliation evidence relevant only where there is no other relevant only where there is no other reason for the defendant to have acted reason for the defendant to have acted as he did to commit the crime. as he did to commit the crime.

(2)

Even if relevant, under

Rule 403 the (2) Even if relevant, under Rule 403 the evidence was so prejudicial as to outweigh evidence was so prejudicial as to outweigh any probative value of the evidence. any probative value of the evidence.

(a)

Evidence of gang affiliation

Evidence of gang afﬁliation (a) was a ―distraction‖ to the jury. was a “distraction” to the jury. (b)

The jury was not equipped to

(b) The jury wasnot equipped to evaluate the probative force of the evaluate the probative force of the testimony.

testimony.

(E)

Harm

18 (E) Harm 18

(1)

Where error occurs in admitting

(1) Where error occurs in admitting evidence of gang affiliation, reversal is evidence of gang afﬁliation, reversal is required unless it is determined that the required unless it is determined that the error did not affect Boswell‘s substantial error did not affect Boswell’s substantial rights.

rights.

(a)

Substantial

rights are not Substantial rights are not (a) affected if, after examination of the affected if, after examination of the record as a whole, a reviewing court record as a whole, a reviewing court has a fair assurance that the error did has a fair assurance that the error did not influence the jury, or had but a not inﬂuence the jury, or had but a slight effect. slight effect.

iii

*6 TABLE OF CONTENTS, continued TABLE OF CONTENTS, continued

Page

(b)

A review here indicates the

(b) A review here indicates the evidence contributed to Boswell‘s evidence contributed to Boswell’s guilty verdict. guilty verdict.

(1)

The State was the source

(1) The State was the source of the error when it introduced of the error when it introduced irrelevant evidence of character irrelevant evidence of character conformity.

conformity.

(2)

The State emphasized

(2) The State emphasized Boswell‘s gang affiliation in Boswell’s gang afﬁliation in closing arguments. closing arguments. (3)

Every witness for the

(3) Every witness for the State spoke

to or about

State spoke to or about Boswell‘s gang affiliation. Boswell’s gang affiliation. (4)

The State‘s

―gang

“gang

(4) The State’s expert‖ spent a great deal of expert” spent a great deal of time on Boswell‘s role with a time on Boswell’s role with a criminal street gang. criminal street gang. (5)

In

dramatic fashion

In dramatic fashion (5) before the jury, Boswell was before the jury, Boswell was ordered to partially disrobe to ordered to partially disrobe to show what were described as show what were described as gang tattoos when the same gang tattoos when the same evidence was available

in

evidence was available in photographs.

photographs.

(2)

Presentation of

the offending (2) Presentation of the offending evidence was calculated to prejudice the evidence was calculated to prejudice the jury, and as a result, the evidence likely jury, and as a result, the evidence likely affected Boswell‘s substantial rights. affected Boswell’s substantial rights.

TABLE OF CONTENTS, continued

*7 TABLE OF CONTENTS, continued

Page

Issue Two-Restated

20 7. Issue Two-Restated 20

The trial court abused its discretion by The trial court abused its discretion by

denying Boswell‘s motion for new trial based on denying Boswell’s motion for new trial based on a

Brady

violation when the prosecution failed to a Brady Violation when the prosecution failed to disclose a witness‘ history of reprimands while disclose a witness’ history of reprimands while serving as a police officer. serving as a police officer.

Issue Three-Restated

21 8. Issue Three-Restated 21

The trial court abused its discretion by The trial court abused its discretion by

denying Boswell‘s motion for new trial based on denying Boswell’s motion for new trial based on a

Brady

violation when the prosecution failed to a Brady violation when the prosecution failed to disclose

impeachment and bias evidence

(A)

Statement of Pertinent Evidence

(A) Statement of Pertinent Evidence (B)

Standard of Review – New Trial

(B) Standard of Review — New Trial

(1)

A reviewing court reviews a trial

(1) A reviewing court reviews a trial court‘s ruling on a motion for new trial for court’s ruling on a motion for new trial for an abuse of discretion. an abuse of discretion. (2)

Trial Court would not abuse its

(2) Trial Court would not abuse its discretion in granting new trial if the discretion in granting new trial if the defendant articulated a valid claim, defendant articulated a valid claim, produced evidence supporting the claim, produced evidence supporting the claim, and showed prejudice to his substantial and showed prejudice to his substantial rights.

rights.

(C)

Applicable Law –

Brady Violation (C) Applicable Law — Brady Violation

(1)

Due process requires prosecutorial

(1) Due process requires prosecutorial disclosure of information material to guilt disclosure of information material to guilt or innocence that is favorable to the or innocence that is favorable to the defendant.

defendant.

TABLE OF CONTENTS, continued

*8 TABLE OF CONTENTS, continued

Page

(2)

A

Brady violation occurs when the (2) A Brady violation occurs when the State suppresses, even

inadvertently,

State suppresses, even inadvertently, evidence favorable to the defendant. evidence favorable to the defendant. (3)

The State has a duty to reveal

Brady (3) The State has a duty to reveal Brady material to the defense whether or not the material to the defense whether or not the defense requested the information. defense requested the information.

(D)

Argument

(D) Argument

(1)

In Boswell‘s post-conviction hearing,

(1) In Boswell’s post-conviction hearing, the authenticity of the records containing the authenticity of the records containing impeachment/bias

evidence

was impeachment/bias evidence was acknowledged and the records were not acknowledged and the records were not furnished to the defense. furnished to the defense.

(a)

The documents

indicated a (a) The documents indicated a basis for bias on the witness‘ part basis for bias on the witness’ part because his testimony at trial, when because his testimony at trial, when added to his curriculum vitae, would added to his curriculum vitae, would promote his efforts to land a job with promote his efforts to land a job with law enforcement. law enforcement.

(2)

The failure to disclose the records was

(2) The failure to disclose the records was ―material‖ (

i.e.

, prejudicial to Boswell) “material” (i.e., prejudicial to Boswell) when viewed in light of other evidence when viewed in light of other evidence presented at trial. presented at trial.

(a)

The only evidence of Boswell‘s

(a) The only evidence of Boswell’s involvement in the robbery presented involvement in the robbery presented at trial came from accomplices who at trial came from accomplices who each had a motive to testify favorable each had a motive to testify favorable for the State. for the State. (b)

The undisclosed records would

(b) The undisclosed records would have undermined the testimony of the have undermined the testimony of the one witness who bolstered

the

one witness who bolstered the testimony of that of the various testimony of that of the Various accomplice witnesses. accomplice witnesses.

6 *9 TABLE OF CONTENTS, continued TABLE OF CONTENTS, continued

Page

(c)

The undisclosed records would

(c) The undisclosed records would have undermined the testimony of a have undermined the testimony of a witness who gave information to the witness who gave information to the jury different in kind from the other jury different in kind from the other State‘s witnesses. State’s Witnesses.

(1)

Here,

the witness‘ the witness’ Here, (1) credibility

could not be

could not be credibility attacked except through the attacked except through the offending evidence. offending evidence. (2)

The witness was the sole

(2) The witness was the sole source of much of the evidence source of much of the evidence about Boswell‘s gang activity. about Boswell’s gang activity.

9.

Prayer

33 9. Prayer 33

10.

Certificate of Service and of Compliance With Rule 9

34 Certificate of Service and of Compliance With Rule 9 34 10.

INDEX OF AUTHORITIES

*10 INDEX OF AUTHORITIES

Authorities

Page Page Authorities

United States Supreme Court cases United States Supreme Court cases

Brady v. Maryland

9,20

Brady v. Maryland 9,20

373 U.S. 83, 83 S. Ct. at 1194, 10 L. ED. 2d 215 (1963) 373 U.S. 83, 83 S. Ct. at 1194, 10 L. ED. 2d 215 (1963)

Davis v. Alaska

27

Davis v. Alaska 27

415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974) 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974)

Giglio v. U.S.

23,27

Giglio v. US. 23,27

405 U.S. 150, 92 S. Ct. 763, 31 L.Ed.2d 104 (1972) 405 U.S. 150,92 S. Ct. 763, 31 L.Ed.2d 104 (1972)

Kyles v. Whitley

22,29

22,29 Kyles v. Whitley

514 U.S. 419, 115 S. Ct. 1555, 131 L.Ed.2d 490 (1995) 514 U.S.419,115 S. Ct. 1555, 131 L.Ed.2d 490(1995)

Napue v. Illinois

28

Napue v. Illinois 28

360 U.S. 264, 79 S. Ct. 1173, 3 L.Ed.2d 1217 (1959) 360 US. 264, 79 S. Ct. 1173, 3 L.Ed.2d 1217 (1959)

United States v. Bagley

28,29

United States v. Bagley 28,29

473 U.S. 667, 105 S. Ct. 3375, 87 L.Ed.2d 481 (1985) 473 U.S. 667, 105 S. Ct. 3375, 87 L.Ed.2d 481 (1985)

United States Court of Appeals cases United States Court of Appeals cases

Johnson v. Mills

30

Johnson v. Mills 30

592 F.3d 730 (2010) 592 F.3d 730 (2010)

Texas Court of Criminal Appeals cases Texas Court of Criminal Appeals cases

Authorities

Authorities

Gigliobianco v. State

14,17,

Gigliobianco v. State 14,17,

210 S.W.3d 637 (Tex. Crim. App. 2006) 210 S.W.3d 637 (Tex. Crim. App. 2006)

Hammer v. State

14

Hammer v. State 14

296 S.W.3d 555 (Tex. Crim. App. 2009) 296 S.W.3d 555 (Tex. Crim. App. 2009)

INDEX OF AUTHORITIES, continued

*11 INDEX OF AUTHORITIES, continued

Texas Court of Criminal Appeals cases, continued Texas Court of Criminal Appeals cases, continued

Authorities

Page

Authorities Page Harm v. State

24

Harm v. State 24

183 S.W.3d 403 (Tex. Crim. App. 2006) 183 S.W.3d 403 (Tex. Crim. App. 2006)

Herndon v. State

23,26,

Herndon v. State 23,26,

215 S.W.3d 901 (Tex. Crim. App. 2007) 215 S.W.3d 901 (Tex. Crim. App. 2007)

Johnson v. State

18

Johnson v. State 18

967 S.W.2d 410 (Tex. Crim. App. 1998) 967 S.W.2d 410 (Tex. Crim. App. 1998)

King v. State

17

King v. State 17

953 S.W. 2d 266 (Tex. Crim. App. 1997) 953 S.W. 2d 266 (Tex. Crim. App. 1997)

Little v. State

25

25 Little v. State

991 S.W.2d 864 (Tex. Crim. App. 1999) 991 S.W.2d 864 (Tex. Crim. App. 1999)

Martin v. State

13,14

Martin v. State 13,14

173 S.W. 3d 463 (Tex. Crim. App. 2005) 173 S.W. 3d 463 (Tex. Crim. App. 2005)

Motilla v. State

18

Motilla v. State 18

78 S.W.3d 352 (Tex. Crim. App. 2002) 78 S.W.3d 352 (Tex. Crim. App. 2002)

Macias v. State

16

Macias v. State 16

959 S.W.2d 332 (Tex. App. – Houston [14 th Dist.] 1997) 959 S.W.2d 332 (Tex. App. — Houston [14”‘ Dist.] 1997)

Pena v. State

24

Pena v. State 24

353 S.W.3d 797 (Tex. Crim. App. 2011) 353 S.W.3d 797 (Tex. Crim. App. 2011)

Solomon v. State

18

Solomon v. State 18

49 S.W.3d 356 (Tex. Crim. App. 2001) 49 S.W.3d 356 (Tex. Crim. App. 2001)

State v. Fury

25

25 State v. Fury

86 S.W.3d 67 (Tex. App. – Houston [1 st Dist.] 2005, 86 S.W.3d 67 (Tex. App. — Houston [1S‘Dist.] 2005, pet. ref’d ) per. ref’d)

ix

viii

-no

INDEX OF AUTHORITIES, continued

*12 INDEX OF AUTHORITIES, continued

Texas Court of Criminal Appeals cases, continued Texas Court of Criminal Appeals cases, continued

Authorities

Page

Authorities Page State v. Thomas

25

State v. Thomas 25

428 S.W.3d 99 (Tex. Crim. App. 2014) 428 S.W.3d 99 (Tex. Crim. App. 2014)

Vasquez v. State

16

Vasquez v. State 16

67 S.W.3d 229 (Tex. Crim. App. 2002) 67 S.W.3d 229 (Tex. Crim. App. 2002)

Westbrook v. State

32

Westbrook v. State 32

29 S.W.3d 103 (Tex. Crim. App. 2000) 29 S.W.3d 103 (Tex. Crim. App. 2000)

Texas Court of Appeals cases Texas Court of Appeals cases

Brumfield v. State

15

Brumﬁeld v. State 15

18 S.W.3d 921 (Tex. App. – Beaumont 2000,

pet. ref’d

) 18 S.W.3d 921 (Tex. App. — Beaumont 2000,pet. ref’d)

In the Matter of C.F.C

.

31 In the Matter ofC.F.C. 31

1999 WL675440 (Tex. App. – San Antonio, August 31, 1999 WL675440 (Tex. App. — San Antonio, August 31, 1999 (

not designated for publication

)) 1999 (not designatedforpublication»

Grant v. State

13

Grant v. State 13

2015 WL 50254777, at *5 2015 WL 50254777, at *5 (Tex. App. – Houston [14 th Dist.] Aug. 25, 2015, pet. ref’d ) (Tex. App. — Houston [14‘h Dist.] Aug. 25, 2015, pet. ref’d)

Montgomery v. State Montgomery v. State

821 S.W.3d 14 (Tex. App. – Dallas 1991)

14

821 S.W.3d 14 (Tex. App. —Dallas 1991) 14

Newton v. State

14

Newton v. State 14

301 S.W.3d 315 (Tex. App. – Waco 2009,

pet. ref’d

) 301 S.W.3d 315 (Tex. App. — Waco 2009,pet. ref’d)

Ojeda v. State

16

Ojeda v. State 16

2004 WL2137653 (Tex. App.—El Paso, September 24, 2004, 2004 WL2137653 (Tex. App.—E1 Paso, September 24, 2004, (not designated for publication,

pet. ref’d

2005) (not designated for publication, pet. ref ’d 2005)

*13 INDEX OF AUTHORITIES, continued INDEX OF AUTHORITIES, continued

Texas Court of Appeals cases, continued Texas Court of Appeals cases, continued

Authorities

Page

Authorities Page Tibbs v. State

15

T ibbs v. State 15

125 S.W.3d 84 (Tex. App. – Houston [14 th Dist.] 2003, 125 S.W.3d 84 (Tex. App. — Houston [14”‘ Dist.] 2003, pet. ref’d

)

pet. ref ’d)

Statutes

TEX. R. APP. PROC. 44(2)(b)

17

TEX. R. APP. PROC. 44(2)(b) 17 TEX. R. APP. P. 21.3, (h)

22,23

TEX. R. APP. P. 21.3, (h) 22,23 TEX. PENAL CODE §19.03(a)(2), (b)(1)(West 2014)

3,31,32

TEX. PENAL CODE §19.03(a)(2), (b)(1)(West 2014)

3,31,32 TEX. CODE CRIM. PROC. art. 37.071(1)(West 2014)

3, 9

TEX. CODE CRIM. PROC. art. 37.071(1)(West 2014)

3, 9 TEX. R. EVID. 401,402,403,404(b)

9,1,13

TEX. R. EVID. 401,402,403,404(b) 9,1,13

Periodicals/Legal Journals Periodicals/Legal Journals

Stephen S. Troft

29

29 Stephen S. Troft

Words of Warning for Prosecutors Using Words of Warningfor Prosecutors Using Criminals as Witnesses

, 47 Hastings, I.J. 1391, 1395 (1966)

Criminals as Witnesses, 47 Hastings, 1.]. 1391, 1395 (1966)

xi x xi

*15 IN THE THIRD COURT OF APPEALS IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS

LARRY DONNELL BOSWELL, JR.§

Appellant § Appellant

§ §

CAUSE NO. 03-15-00540-CR

§ CAUSE NO. 03-15-00540-CR

§

TRIAL COURT NUMBER 72,904 § TRIAL COURT NUMBER 72,904

V. §

THE STATE OF TEXAS

§

THE STATE OF TEXAS

§

Appellee § Appellee

BRIEF OF APPELLANT

TO THE HONORABLE COURT OF APPEALS:

IDENTITY OF PARTIES AND COUNSEL

1. IDENTITY OF PARTIES AND COUNSEL

COMES NOW

, Larry Donnell Boswell, Jr., appellant, who would show the COMES NOW, Larry Donnell Boswell, Jr., appellant, who would show the

Court that interested parties herein are as follows: Court that interested parties herein are as follows:

LARRY DONNELL BOSWELL, JR.

, appellant, TDCJ No. 02011634,

LARRY DONNELL BOSWELL, JR., appellant, TDCJ No. 02011634,

Michael Unit, 2664 FM 2054, Tennessee Colony, Texas 75886. Michael Unit, 2664 FM 2054, Tennessee Colony, Texas 75886.

ROBERT D. HARRIS, III

and

ZACHARY BOYD , trial attorneys for ROBERT D. HARRIS, III and ZACHARY BOYD, trial attorneys for

appellant, 404 N. Main St., Belton, Texas, 76513, and P.O. Box 870, Copperas Cove, appellant, 404 N. Main St., Belton, Texas, 76513, and P.O. Box 870, Copperas Cove, Texas, 76522, respectively.. Texas, 76522, respectively..

ERIKA COPELAND

, appellate attorney for appellant, P.O.

ERIKA COPELAND, appellate attorney appellant, PO. for

Box 399, Cedar Park, Texas 78613. Box 399, Cedar Park, Texas 78613.

*16 WILLIAM NELSON BARNES

and

BOB ODOM , Bell County Assistant WILLIAM NELSON BARNES and BOB ODOM, Bell County Assistant

District Attorneys, trial and appellate attorneys, respectively, for appellee, the State District Attorneys, trial and appellate attorneys, respectively, for appellee, the State of Texas, P.O. Box 540, Belton, Texas 76513. of Texas, P.O. Box 540, Belton, Texas 76513.

IN THE THIRD COURT OF APPEALS

*17 IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS

LARRY DONNELL BOSWELL, JR.§

Appellant § Appellant

§ §

CAUSE NO. 03-15-00540-CR

§ CAUSE NO. 03-15-00540-CR

§

TRIAL COURT NUMBER 72,904 § TRIAL COURT NUMBER 72,904

V. §

THE STATE OF TEXAS

§

THE STATE OF TEXAS

§

Appellee § Appellee

§ 2.

STATEMENT OF THE CASE

2. STATEMENT OF THE CASE

On June 11, 2015, a jury convicted Larry Donnell Boswell, Jr. of the capital

offense of murder. (R.R. 7, p. 74) and,

see

TEX. PENAL CODE §19.03(a) (2) offense of murder. (R.R. 7, p. 74) and, see TEX. PENAL CODE §19.03(a) (2) (West 2014)

(C.R. 1, p. 77). As the State had not sought the death penalty, the trial

(West 2014) (C.R. l, p. 77). As the State had not sought the death penalty, the trial court sentenced Mr. Boswell to life in the Texas Department of Criminal Justice‘s court sentenced Mr. Boswell to life in the Texas Department of Criminal Justice’s Institutional Division without the possibility of parole. (R.R. 7, p. 75), and

see

TEX. Institutional Division without the possibility of parole. (R.R. 7, p. 75), and see TEX. CODE CRIM. PROC. art. 37.071(1) (West 2014)

. Boswell gave timely notice of

CODE CRIM. PROC. art. 37.071(1) (West 2014). Boswell gave timely notice of appeal, and the trial court certified his right to do so. (C.R. 1, pp. 81, 130). appeal, and the trial court certiﬁed his right to do so. (CR. 1, pp. 81, 130).

BACKGROUND

3. BACKGROUND

Paul Sterling testified that he was called to Killeen from Waco for a meeting

with other members of the Gangster Disciples (hereafter ―G.D.‘s). Once there, he with other members of the Gangster Disciples (hereafter “G.D.’s). Once there, he met in a home used by the gang as a clubhouse, and there, he testified, he was asked met in a home used by the gang as a clubhouse, and there, he testiﬁed, he was asked to go ―hit a lick‖ by the G.D.‘s ―Governor‖, Larry Boswell, Jr. aka ―Word.‖ (R.R. to go “hit a lick” by the G.D.’s “Governor”, Larry Boswell, Jr. aka “Word.” (R.R. *18 5, p. 68). Sterling said that he understood ―hit a lick‖ to mean rob someone. Sterling 5, p. 68). Sterling said that he understood “hit a lick” to mean rob someone. Sterling testified that he refused to undertake the task, but Ricky Brandon, aka ―Red‖, ―Slim‖ testified that he refused to undertake the task, but Ricky Brandon, aka “Red”, “Slim” (Stephen Mitchell Lewis), ―Horsehead‖ (Kevin Lee Stafford) and ―D.C.‖ (Danny (Stephen Mitchell Lewis), “Horsehead” (Kevin Lee Stafford) and “DC.” (Danny Carruth) agreed to the task and left the home armed with a pistol and a rifle in Red‘s Carruth) agreed to the task and left the home armed with a pistol and a riﬂe in Red’s white Suburban. (R.R. 5, pp. 69-70). Sterling said that the four were gone thirty to white Suburban. (RR. 5, pp. 69-70). Sterling said that the four were gone thirty to forty minutes and returned to announce that Red had been shot during the robbery. forty minutes and returned to announce that Red had been shot during the robbery. According to the returning robbers, when Red had emerged unexpectedly from a According to the returning robbers, when Red had emerged unexpectedly from a back bedroom of the house being robbed, Slim had panicked and accidentally shot back bedroom of the house being robbed, Slim had panicked and accidentally shot Red. (R.R. 5, p. 73). Slim announced that they had left Red at the scene. By the Red. (R.R. 5, p. 73). Slim announced that they had left Red at the scene. By the time Boswell and another member of the gang returned to retrieve Red, Sterling said, time Boswell and another member of the gang returned to retrieve Red, Sterling said, the police had already arrived so they returned home without Red‘s body. (R.R. 5, the police had already arrived so they returned home without Red’s body. (R.R. 5, pp. 74-75). pp. 74-75).

Jamie Arrington was targeted by the would-be robbers. 1 Arrington testified Jamie Arrington was targeted by the would-be robbers} Arrington testified

that sometime after midnight his front door was kicked in, and he, his girlfriend and that sometime after midnight his front door was kicked in, and he, his girlfriend and two daughters were accosted at gun point by four armed men. He testified that they two daughters were accosted at gun point by four armed men. He testified that they bound him and his family with duct tape and eventually put them in a bathtub while bound him and his family with duct tape and eventually put them in a bathtub while the house was searched for cash. (R.R. 5, pp. 27-29). The robbers threatened the house was searched for cash. (R.R. 5, pp. 27-29). The robbers threatened *19 Arrington and his fiancee to induce them to disclose where Arrington had hidden his Arrington and his ﬁancee to induce them to disclose where Arrington had hidden his money. (R.R. 5, pp. 32-33). Arrington testified that he heard a gunshot as he and money. (R.R. 5, pp. 32-33). Arrington testiﬁed that he heard a gunshot as he and his family lay in the bathtub, and that as the robbers were leaving, they warned him his family lay in the bathtub, and that as the robbers were leaving, they warned him not to follow. Arrington managed to get loose from his bindings, and he ran outside not to follow. Arrington managed to get loose from his bindings, and he ran outside to find that three of the robbers had fled; they had drug the fourth outside his home to ﬁnd that three of the robbers had ﬂed; they had drug the fourth outside his home where he lay dead near his porch from an apparent gunshot wound. (R.R. 5, pp. 34- where he lay dead near his porch from an apparent gunshot wound. (RR. 5, pp. 34- 37).

37).

Terry Kaiser, a homicide detective with the Killeen Police Department, Terry Kaiser, a homicide detective with the Killeen Police Department,

testified that on his arrival at the crime scene he found a man dead from a single testified that on his arrival at the crime scene he found a man dead from a single gunshot wound to the chest. (R.R. 5, pp. 102-106). 2 Kaiser opined that the physical gunshot wound to the chest. (R.R. 5, pp. 102-106)? Kaiser opined that the physical evidence indicated to him that the man had actually been shot in the house and his evidence indicated to him that the man had actually been shot in the house and his body dragged to its last position near Arrington‘s front porch. (R.R. 5, p. 130). No body dragged to its last position near Arrington’s front porch. (R.R. 5, p. 130). No

guns used by the robbers were ever recovered.

Daniel Carruth, aka ―D.C.‖, testified that Boswell (or ―Word‖) had become Daniel Canuth, aka “D.C.”, testiﬁed that Boswell (or “Word”) had become

the G.D.‘s ―Governor‖ or leader when Boswell took over that role after the G.D.‘s the G.D.’s “Governor” or leader when Boswell took over that role after the G.D.’s former leader was removed. (R.R. 5, p. 140). On the night of the 16 th , Carruth former leader was removed. (R.R. 5, p. 140). On the night of the 16”‘, Carruth testified, Boswell instructed him and three other gang members to go hit a lick. He testified, Boswell instructed him and three other gang members to go hit a lick. He *20 said that he was ordered by Boswell to act as look-out for the other gang members said that he was ordered by Boswell to act as look-out for the other gang members when they stormed into Arrington‘s house. He said that after they entered the house, when they stormed into Arrington’s house. He said that after they entered the house, the home‘s occupants were accosted, tied with duct tape and put in the bath tub as the home’s occupants were accosted, tied with duct tape and put in the bath tub as the house was searched for Arrington‘s cash. (R.R. 5, p. 146). Carruth said that the house was searched for Arrington’s cash. (R.R. 5, p. 146). Carruth said that during the robbery he heard a gunshot from the back bedroom. When he went to during the robbery he heard a gunshot from the back bedroom. When he went to investigate, he saw that Slim had accidentally shot Red when the latter came investigate, he saw that Slim had accidentally shot Red when the latter came unexpectedly from a back bedroom. (R.R. 5, p. 147). Carruth testified that he tried unexpectedly from a back bedroom. (R.R. 5, p. 147). Carruth testiﬁed that he tried to help Slim carry Red from the home back to Red‘s SUV, but eventually they left to help Slim carry Red from the home back to Red’s SUV, but eventually they left his body near the front porch when Red proved too heavy for the two men to carry his body near the front porch when Red proved too heavy for the two men to carry to the get-away car. (R.R. 5, pp. 148-149). After disclosure of the shooting to Word to the get-away car. (R.R. 5, pp. 148-149). After disclosure of the shooting to Word on their return to the gang‘s clubhouse, Carruth said that Boswell and another gang on their return to the gang’s clubhouse, Carruth said that Boswell and another gang member, Beau, returned to the shooting to retrieve Red‘s body, but by then, it was member, Beau, returned to the shooting to retrieve Red’s body, but by then, it was too late. The police were already on the scene. (R.R. 5, pp. 150-151). too late. The police were already on the scene. (R.R. 5, pp. 150-151).

John Bowman, a former police officer and expert on gangs in general and the John Bowman, a former police officer and expert on gangs in general andthe

Gangster Disciples in particular, testified that when Brandon was identified his Gangster Disciples in particular, testiﬁed that when Brandon was identiﬁed his girlfriend eventually led police to Paul Sterling who was brought in for questioning. girlfriend eventually led police to Paul Sterling who was brought in for questioning. Bowman said that he questioned Sterling who, after initially denying any knowledge Bowman said that he questioned Sterling who, after initially denying any knowledge of the crime, eventually told the police all he knew about the night Red was shot, of the crime, eventually told the police all he knew about the night Red was shot, including who was involved in the planning and execution of the botched robbery. including who was involved in the planning and execution of the botched robbery. *21 (R.R. 6, p. 48). Over objection, Bowman also gave detailed testimony about the (R.R. 6, p. 48). Over objection, Bowman also gave detailed testimony about the G.D.‘s, their origin, evolution and history as a violent street gang, their corporate G.D.’s, their origin, evolution and history as a violent street gang, their corporate structure and the nature and extent of their influence in the state. (R.R. 6, pp. 35,

et.

structure and the nature and extent of their inﬂuence in the state. (R.R. 6, pp. 35, et. seq

.). Bowman identified Boswell as the gang‘s leader or ―Governor‖ since the

seq.). Bowman identiﬁed Boswell as the gang’s leader or “Governor” since the spring of 2012, and he described Boswell‘s ascent to his leadership role in the gang. spring of 2012, and he described Boswell’s ascent to his leadership role in the gang. (R.R. 6, pp. 58). 3 The trial court had Boswell remove his shirt for the jury, and (R.R. 6, pp. 58)} The trial court had Boswell remove his shirt for the jury, and Bowman presented a detailed explanation for the various tattoos covering Boswell‘s Bowman presented a detailed explanation for the various tattoos covering Boswell’s upper body and arms which Bowman said had detailed meanings to other gang upper body and arms which Bowman said had detailed meanings to other gang members. (R.R. 6, pp.54-57 and

see

State‘s Exhibits 41-45). He concluded his members. (R.R. 6, pp.54-57 and see State’s Exhibits 41-45). He concluded his testimony by discussing the level of cooperation he had received in his investigation testimony by discussing the level of cooperation he had received in his investigation from other members of the G. D.‘s. from other members of the G. D.’s.

*22 4.

STATEMENT REGARDING ORAL ARGUMENT

4. STATEMENT REGARDING ORAL ARGUMENT

Appellant Counsel believes that oral argument would aid the Court in reaching

its decision and, therefore Counsel requests such argument. its decision and, therefore Counsel requests such argument.

*23 5.

ISSUES PRESENTED

5. ISSUES PRESENTED

ISSUE ONE

The trial court erred in admitting evidence of prior bad acts over defense

counsel‘s objections under

Texas Rules of Evidence 401, 402, 403 and 404(b)

. counsel’s objections under Texas Rules of Evidence 401, 402, 403 and 404(b). Specifically, counsel objected to testimony that Boswell was affiliated with any Speciﬁcally, counsel objected to testimony that Boswell was affiliated with any criminal street gang and to any evidence related to any such gang. (R.R. 5, pp. 14- criminal street gang and to any evidence related to any such gang. (R.R. 5, pp. 14- 15). 15). ISSUE TWO ISSUE TWO

The trial court abused its discretion by denying Boswell‘s motion for new trial

The trial court abused its discretion by denying Boswell’s motion for new trial

based on a Brady 4 violation when the prosecution failed to disclose a witness‘ history based on a Brudy4 violation when the prosecution failed to disclose a witness’ history of reprimands while serving as a police officer. of reprimands while serving as a police ofﬁcer.

ISSUE THREE

The trial court abused its discretion by denying Boswell‘s motion for new trial

The trial court abused its discretion by denying Boswell’s motion for new trial

based on a

Brady

violation when the prosecution failed to disclose impeachment and based on a Brady violation when the prosecution failed to disclose impeachment and bias evidence concerning a State‘s witness that included evidence of a history of bias evidence concerning a State’s witness that included evidence of a history of reprimands while the witness served as a police officer. reprimands while the witness served as a police ofﬁcer.

SUMMARY OF THE ARGUMENTS

*24 SUMMARY OF THE ARGUMENTS

The trial court erred in admitting evidence of Boswell‘s gang affiliation as

The trial court erred in admitting evidence of Boswell’s gang affiliation as

well as other gang related evidence. The evidence was irrelevant and offered only well as other gang related evidence. The evidence was irrelevant and offered only proof of Boswell‘s character and that he acted in conformity with that character. The proof of Boswell’s character and that he acted in conformity with that character. The evidence was irrelevant because it had no tendency to make probable the existence evidence was irrelevant because it had no tendency to make probable the existence of any fact of consequence. There were other reasons beside gang-affiliation for of any fact of consequence. There were other reasons beside gang-affiliation for Boswell to have acted as he did to commit the charged crime. Moreover, even if Boswell to have acted as he did to commit the charged crime. Moreover, even if relevant, the probative value of the offending evidence, if any, was substantially relevant, the probative value of the offending evidence, if any, was substantially outweighed by the danger of unfair prejudice as the jury was not shown to have been outweighed by the danger of unfair prejudice as the jury was not shown to have been equipped necessarily to evaluate the probative force of all the gang related equipped necessarily to evaluate the probative force of all the gang related testimony. As a result, there was a clear disparity between its probative value and testimony. As a result, there was a clear disparity between its probative value and the danger of unfair prejudice. the danger of unfair prejudice.

Boswell‘s motion for new trial was predicated in part on

Brady

violations. Boswell’s motion for new trial was predicated in part on Brady violations.

The State, however inadvertently, failed to provide disciplinary records of its ―gang The State, however inadvertently, failed to provide disciplinary records of its “gang expert‖, a former police officer, who testified extensively about street gangs, their expert”, a former police ofﬁcer, who testified extensively about street gangs, their origins and evolution, and particularly Boswell‘s affiliation and standing within a origins and evolution, and particularly Boswell’s affiliation and standing within a specific gang. Those disciplinary records would have provided evidence of the specific gang. Those disciplinary records would have provided evidence of the witness‘ bias because his record of participation in other trials as an expert on gangs witness’ bias because his record of participation in other trials as an expert on gangs and gang related subjects was reflected in his curriculum vitae which he used to and gang related subjects was reﬂected in his curriculum vitae which he used to Cause No. 03-15-00540-CR Cause No. 03-15-00540-CR Larry Donnell Boswell, Jr. v. The State of Texas Larry Donnell Boswell, Jr. v. The State of Texas Brief of Appellant

10

Brief of Appellant l0 *25 promote his efforts to secure another job with law enforcement. The records also promote his efforts to secure another job with law enforcement. The records also offered impeachment evidence because they detailed misstatements of fact he had offered impeachment evidence because they detailed misstatements of fact he had made to his superiors and thus undermined his veracity as a witness. The evidence made to his superiors and thus undermined his veracity as a witness. The evidence was material to Boswell because his testimony was different in kind from other was material to Boswell because his testimony was different in kind from other witnesses, there was no other source for impeachment evidence, and his testimony witnesses, there was no other source for impeachment evidence, and his testimony bolstered that of the State‘s accomplice witnesses. bolstered that of the State’s accomplice witnesses.

ISSUE ONE RESTATED

7. ISSUE ONE RESTATED

The trial court erred in admitting evidence of prior bad acts over defense

counsel‘s objections under

Texas Rules of Evidence 401, 402, 403 and 404(b)

. counsel’s objections under Texas Rules of Evidence 401, 402, 403 and 404(b). Specifically, counsel objected to testimony that Boswell was affiliated with any Speciﬁcally, counsel objected to testimony that Boswell was affiliated with any criminal street gang. (R.R. 5, pp. 14-15). criminal street gang. (R.R. 5, pp. 14-15).

STATEMENT OF PERTINENT EVIDENCE

Defense counsel objected to any evidence that Boswell was affiliated with any

Defense counsel objected to any evidence that Boswell was afﬁliated with any

street gang, as well as to the use of such terms as ―gang‖ or ―gang member‖ in street gang, as well as to the use of such terms as “gang” or “gang member” in describing him. Counsel complained that such evidence was not relevant and noted describing him. Counsel complained that such evidence was not relevant and noted that Boswell‘s indictment before the jury did not allege organized criminal activity. that Boswell’s indictment before the jury did not allege organized criminal activity. As a result, any alleged gang appellation, affiliation or activity was irrelevant. As a result, any alleged gang appellation, afﬁliation or activity was irrelevant. Moreover, counsel argued that any evidence of that nature would be overwhelmingly Moreover, counsel argued that any evidence of that nature would be overwhelmingly prejudicial to Boswell‘s case and would certainly outweigh any probative value prejudicial to Boswell’s case and would certainly outweigh any probative value Cause No. 03-15-00540-CR Cause No. 03-15-00540-CR Larry Donnell Boswell, Jr. v. The State of Texas Larry Donnell Boswell, Jr. v. The State of Texas Brief of Appellant

11

Brief of Appellant

l 1 *26 offered by the offending testimony. (R.R. 5, pp. 14-16). The State countered that offered by the offending testimony. (R.R. 5, pp. 14-16). The State countered that Boswell‘s gang affiliation was admissible ―to show motive, opportunity, intent, plan, Boswell’s gang affiliation was admissible “to show motive, opportunity, intent, plan, preparation, knowledge, identity, absence of mistake or accident, or other preparation, knowledge, identity, absence of mistake or accident, or other enumerated causes.‖ In fact, the State urged, Boswell‘s gang affiliation was ―part enumerated causes.” In fact, the State urged, Boswell’s gang affiliation was “part of what made him a party to this offense…‖, and further, that Boswell‘s gang ^[5] of what made him a party to this offense...’, and further, that Boswell’s gang affiliation was how one of the State‘s witnesses ―knows the defendant so identity afﬁliation was how one of the State’s witnesses “knows the defendant so identity comes into play as well.‖ (R.R. 5, p. 16). comes into play as well.” (R.R. 5, p. 16).

The trial court denied Boswell‘s motion to exclude evidence of Boswell‘s The trial court denied Boswell’s motion to exclude evidence of Boswell’s

gang affiliation. (R.R. 5, p. 18). As a result, the jury heard extensive testimony in gang afﬁliation. (R.R. 5, p. 18). As a result, the jury heard extensive testimony in the guilt/innocence phase of the trial as detailed above; including testimony as noted the guilt/innocence phase of the trial as detailed above; including testimony as noted that Boswell was not only a member of the Gangster Disciples, but that he was, in that Boswell was not only a member of the Gangster Disciples, but that he was, in fact, its leader or ―Governor‖ and the one who had ordered the robbery the subject fact, its leader or “Governor” and the one who had ordered the robbery the subject of this offense.

See

, e.g. , testimony of: Paul Sterling at R.R. 5, pp. 63, 68, 79-80; of this offense. See, e.g., testimony of: Paul Sterling at RR. 5, pp. 63, 68, 79-80; Daniel Carruth at R.R. 5, pp. 140-144, 157. The evidence also included, again as Daniel Carruth at RR. 5, pp. 140-144, 157. The evidence also included, again as the result of an order from the trial court that Boswell remove his shirt before the the result of an order from the trial court that Boswell remove his shirt before the jury, a description and explanation by the State‘s gang ―expert‖, John Bowman, of jury, a description and explanation by the State’s gang “expert”, John Bowman, of Boswell‘s various tattoos. (R.R. 6, pp. 26

et. seq.

, and, specifically, at pp. 41, 54, Boswell’s various tattoos. (R.R. 6, pp. 26 et. seq., and, speciﬁcally, at pp. 41, 54, and 58, as well as State‘s Exhibits 41-45 (photos of Boswell‘s tattoos). and 58, as well as State’s Exhibits 41-45 (photos of Boswell’s tattoos).

APPLICABLE LAW

*27 APPLICABLE LAW

At trial, all relevant evidence is admissible unless otherwise excepted by the

Constitution, statute, or other rules.

TEX. R. EVID. 402

. ―Relevant evidence‖ is Constitution, statute, or other rules. TEX. R. EVID. 402. “Relevant evidence” is defined as evidence having ―any tendency to make the existence of any fact that is deﬁned as evidence having “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable of consequence to the determination of the action more probable or less probable than it would be without the evidence.‖

TEX. R. EVID. 401

. than it would be without the evidence.” TEX. R. EVID. 401.

Evidence of other crimes, wrongs, or acts is not admissible to prove the Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity with the character.

TEX.

character of a person in order to show action in conformity with the character. TEX. R. EVID. 404(b)

. However, such evidence may be admissible for other purposes,

R. EVID. 404(b). However, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Martin v. State

, 173 S.W. 3d 463, 466 (Tex. or absence of mistake or accident. Martin v. State, 173 S.W. 3d 463, 466 (Tex. Crim. App. 2005) (citing

Rule 404(b)

). Accordingly, a party may introduce Crim. App. 2005) (citing Rule 404(b)). Accordingly, a party may introduce extraneous offense evidence if (apart from character conformity) it logically serves extraneous offense evidence if (apart from character conformity) it logically serves to make more or less probable an elemental fact, an evidentiary fact that inferentially to make more or less probable an elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or defensive evidence that undermines an elemental fact. leads to an elemental fact, or defensive evidence that undermines an elemental fact. Id . Ia’.

Relevant evidence may be excluded if its probative value is substantially Relevant evidence may be excluded if its probative value is substantially

outweighed by a danger of, among other things, unfair prejudice.

TEX R. EVID.

outweighed by a danger of, among other things, unfair prejudice. TEX R. EVID. 403

; and

see , Grant v. State , No. 14-13-01077-CR WL 50254777, at *5 (Tex. App. 403; and see, Grant v. State, No. 14-13-01077-CR WL 50254777, at *5 (Tex. App. Cause No. 03-15-00540-CR Cause No. 03-15-00540-CR Larry Donnell Boswell, Jr. v. The State of Texas Larry Donnell Boswell, Jr. v. The State of Texas Brief of Appellant

13

Brief of Appellant l3 *28 – Houston [14 th Dist.] Aug. 25, 2015, no pet. h .). In its seminal decision in — Houston [14"‘ Dist.] Aug. 25, 2015, no pet. h.). In its seminal decision in Montgomery v. State

, the Court of Criminal Appeals identified four non-exclusive

Montgomery v. State, the Court of Criminal Appeals identiﬁed four non-exclusive factors to be considered in determining whether evidence should be excluded under factors to be considered in determining whether evidence should be excluded under Rule 403

. Those factors were: (1) the probative value of the evidence; (2) the

Rule 403. Those factors were: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and, (4) the proponent‘s need for the evidence. The needed to develop the evidence; and, (4) the proponent’s need for the evidence. The Court of Criminal Appeals and the Court of Appeals at Waco reviewed the Court of Criminal Appeals and the Court of Appeals at Waco reviewed the Montgomery

decision in

Gigliobianco v. State , 210 S.W.3d 637, 641-42 (Tex. Montgomery decision in Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)(

footnotes citations omitted

) and Newton v. State , 301 S.W.3d 315, Crim. App. 2006)(footnotes citations omitted) and Newton v. State, 301 S.W.3d 315, 322-23 (Tex. App. – Waco 2009,

pet. ref’d

)( footnote citations omitted ). In 322-23 (Tex. App. — Waco 2009, pet. ref’d)(footnote citations omitted). In Gigliobianco

, the Court restated the pertinent factors as follows:

Gigliobianco, the Court restated the pertinent factors as follows:

[A] trial court, when undertaking

Rule 403

analysis, must balance (1) the [A] trial court, when undertaking Rule 403 analysis, must balance (1) the inherent probative force of the proffered item of evidence along with (2) the inherent probative force of the proffered item of evidence along with (2) the proponent‘s need for that evidence against (3) any tendency of the evidence proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Of course, these factors may well merely repeat evidence already admitted. Of course, these factors may well blend together in practice. blend together in practice.

Gigliobianco

at 641-42. --Gigliobianco at 641-42.

*29 Rule 403,

the Court of Criminal Appeals wrote in

Newton , ―envisions Rule 403, the Court of Criminal Appeals wrote in Newton, “envisions exclusion of evidence only when there is a ‗clear disparity between the degree exclusion of evidence only when there is a ‘clear disparity between the degree of prejudice of the offered evidence and its probative value.‘ ‖

”

of prejudice of the offered evidence and its probative value.’ --Newton

at 322-23 (quoting

Hammer v. --Newton at 322-23 (quoting Hummer v.

State

, 296 S.W.3d 555, 568 (Tex. Crim. App.

State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009)). 2009)).

STANDARD OF REVIEW STANDARD OF REVIEW

An appellate court reviews a trial court‘s ruling under the Rules of Evidence

An appellate court reviews a trial court’s ruling under the Rules of Evidence

for an abuse of discretion.

Martin v. State

, 173 S.W.3d at 467. If the ruling was for an abuse of discretion. Martin v. State, 173 S.W.3d at 467. If the ruling was correct on any theory of law applicable to the case, in light of what was before the correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling as made, a reviewing court must uphold the trial court at the time the ruling as made, a reviewing court must uphold the judgment.

Id

. A trial court‘s ruling on the admissibility of evidence will be upheld judgment. Id. A trial court’s ruling on the admissibility of evidence will be upheld as long as the ruling was within the zone of reasonable disagreement.

Id

. as long as the ruling was within the zone of reasonable disagreement. Id. ARGUMENT ARGUMENT

Evidence of Boswell‘s gang membership was not relevant. Here, the evidence Evidence of Boswell’s gang membership was not relevant. Here, the evidence

of gang affiliation had no tendency to make probable the existence of any fact of of gang afﬁliation had no tendency to make probable the existence of any fact of consequence. Rather, that evidence was introduced simply in an attempt to connect consequence. Rather, that evidence was introduced simply in an attempt to connect Boswell to a gang to show his bad character. The State could have presented a clear Boswell to a gang to show his bad character. The State could have presented a clear and understandable case explaining that Boswell participated in, or even authored, and understandable case explaining that Boswell participated in, or even authored, the plan to rob Arrington of the latter‘s ill-gotten gains without interjecting the plan to rob Arrington of the latter’s ill-gotten gains without interjecting unnecessary information about gangs or Boswell‘s affiliation with a gang. Had the unnecessary information about gangs or Boswell’s affiliation with a gang. Had the Cause No. 03-15-00540-CR Cause No. 03-15-00540-CR Larry Donnell Boswell, Jr. v. The State of Texas Larry Donnell Boswell, Jr. v. The State of Texas Brief of Appellant

15

Brief of Appellant l5 *30 State presented its case without the evidence of Boswell‘s gang relationship, the jury State presented its case without the evidence of Boswell’s gang relationship, the jury could have undoubtedly followed and understood the sequence of events of the night could have undoubtedly followed and understood the sequence of events of the night of the robbery. Moreover, the offending testimony was not same transaction of the robbery. Moreover, the offending testimony was not same transaction contextual evidence, and thus not admissible as an exception under

Rule 404(b)

. contextual evidence, and thus not admissible as an exception under Rule 404(b). Indeed, as Houston‘s 14 th District Court of Appeals noted, it is only in situations Indeed, as Houston’s 14”‘ District Court of Appeals noted, it is only in situations where there is no other reason

for the defendant to have acted as he did to commit

where there is no other reason for the defendant to have acted as he did to commit a crime that gang-affiliation evidence should come in during the guilt-innocence a crime that gang-affiliation evidence should come in during the guilt-innocence stage of a trial, and that was not the case here.

See

Tibbs v. State , 125 S.W.3d 84 stage of a trial, and that was not the case here. See T ibbs v. State, 125 S.W.3d 84 (Tex. App. – Houston [14 th Dist.] 2003, pet. ref’d ), concurring opinion by Justice (Tex. App. — Houston [l4“‘ Dist.] 2003, pet. ref ’cl), concurring opinion by Justice Anderson, citing

Brumfield v. State

, 18 S.W.3d 921, 925-26 (Tex. App. – Beaumont Anderson, citing Brumﬁeld v. State, 18 S.W.3d 921, 925-26 (Tex. App. — Beaumont 2000,

pet. ref’d

) ( emphasis supplied ). Boswell‘s gang affiliation was not part of the 2000, pet. ref ’d) (emphasis supplied). Boswell’s gang afﬁliation was not part of the reason for the murder, or part of the explanation for why the murder occurred as it reason for the murder, or part of the explanation for why the murder occurred as it did. In fact, Brandon‘s death could have occurred the way it did if a number of did. In fact, Brandon’s death could have occurred the way it did if a number of people randomly gathered together had simply decided to commit a robbery. In that people randomly gathered together had simply decided to commit a robbery. In that scenario, Boswell could still be guilty of the offense as an accomplice, and clearly, scenario, Boswell could still be guilty of the offense as an accomplice, and clearly, whether he and the men with whom he associated for the robbery were members of whether he and the men with whom he associated for the robbery were members of a gang or not would play no role in the offense.

See e.g.

, Macias v. State , 959 a gang or not would play no role in the offense. See e.g., Macias v. State, 959 S.W.2d 332 (Tex. App. – Houston [14 th Dist.] 1997) and cf. the unpublished opinion S.W.2d 332 (Tex. App. — Houston [l4“‘ Dist.] 1997) and cf the unpublished opinion of

Ojeda v. State

, 2004 WL2137653, (Tex. App.—El Paso, September 24, 2004, pet. of Ojeda v. State, 2004 WL2l37653, (Tex. App.—El Paso, September 24, 2004, pet. Cause No. 03-15-00540-CR Cause No. 03-15-00540-CR Larry Donnell Boswell, Jr. v. The State of Texas Larry Donnell Boswell, Jr. v. The State of Texas Brief of Appellant

16

Brief of Appellant l6 *31 ref’d,

2005 (

not designated for publication ) (gang-membership evidence was ref ’d, 2005 (not designated for publication) (gang-membership evidence was specifically linked to the case and was not used as character conformity evidence) specifically linked to the case and was not used as character conformity evidence) and

Vasquez v. State

, 67 S.W.3d 229 (Tex. Crim. App. 2002). and Vasquez v. State, 67 S.W.3d 229 (Tex. Crim. App. 2002).

Even if relevant, under

Rule 403

the evidence of Boswell‘s gang affiliation Even if relevant, under Rule 403 the evidence of Boswell’s gang affiliation

was so prejudicial as to outweigh any probative value of the evidence. None of the was so prejudicial as to outweigh any probative Value of the evidence. None of the pertinent factors cited above as dispositive of a

Rule 403

analysis justify the pertinent factors cited above as dispositive of a Rule 403 analysis justify the admission of the offending evidence. Rather, the jury‘s view during trial of a admission of the offending evidence. Rather, the jury’s View during trial of a shirtless man disrobed at the order of the trial court to expose his tattoos must have shirtless man disrobed at the order of the trial court to expose his tattoos must have had a substantial impact on the jury. Besides the obvious potential tendency to had a substantial impact on the jury. Besides the obvious potential tendency to distract the jury from a sober reflection on the import of such a display (after all, the distract the jury from a sober reﬂection on the import of such a display (after all, the State had photos of the tattoos it could have shown the jury) the offending evidence State had photos of the tattoos it could have shown the jury) the offending evidence suggested a jury decision could rationally be based on the fact that Boswell was a suggested a jury decision could rationally be based on the fact that Boswell was a gangster as his tattoos indicated rather than on the sufficiency of evidence adduced gangster as his tattoos indicated rather than on the sufﬁciency of evidence adduced to prove his association with the robbery. To bolster that improper basis for the to prove his association with the robbery. To bolster that improper basis for the jury‘s decision, the State presented to the jury an expert whose testimony about jury’s decision, the State presented to the jury an expert whose testimony about Boswell‘s gang involvement in general and in Killen in particular was the Boswell’s gang involvement in general and in Killen in particular was the centerpiece of the State‘s case. All of that evidence allowed the jury the opportunity centerpiece of the State’s case. All of that evidence allowed the jury the opportunity to give the testimony an inordinate, undue weight when the jury was not equipped to give the testimony an inordinate, undue weight when the jury was not equipped to evaluate the probative force of the testimony.

See

Gigliobianco , 210 S.W.3d at to evaluate the probative force of the testimony. See Gigliobianco, 210 S.W.3d at Cause No. 03-15-00540-CR Cause No. 03-l5-00540-CR Larry Donnell Boswell, Jr. v. The State of Texas Larry Donnell Boswell, Jr. v. The State of Texas Brief of Appellant

17

Brief of Appellant l7 *32 641-42. Considering the trial testimony about gangs in general, testimony about 641-42. Considering the trial testimony about gangs in general, testimony about Boswell‘s relationship to gang activity in particular, as well as the accomplice Boswell’s relationship to gang activity in particular, as well as the accomplice testimony that Boswell, as the leader of the gang, planned the robbery which resulted testimony that Boswell, as the leader of the gang, planned the robbery which resulted in Brandon‘s death, there is a clear disparity between the danger of unfair prejudice in Brandon’s death, there is a clear disparity between the danger of unfair prejudice resulting from the complained-of testimony and its probative value. As a result, the resulting from the complained-of testimony and its probative value. As a result, the trial court abused its discretion by overruling Boswell‘s

Rule 403

objection to trial court abused its discretion by overruling Boswell’s Rule 403 objection to testimony concerning Boswell‘s alleged gang affiliation. testimony concerning Boswell’s alleged gang affiliation. HARM HARM

Where the trial court erred in admitting evidence of Boswell‘s gang affiliation, Where the trial court erred in admitting evidence of Boswell’s gang affiliation,

reversal is required, unless after examining the record, it is determined that the error reversal is required, unless after examining the record, it is determined that the error did not affect Boswell‘s substantial rights.

TEX. 4. APP. PROC. 44(2) (b)

; King did not affect Boswell’s substantial rights. TEX. 4. APP. PROC. 44(2) (b); King v. State

, 953 S.W. 2d 266, 271 (Tex. Crim. App. 1997). Substantial rights are not

v. State, 953 S.W. 2d 266, 271 (Tex. Crim. App. 1997). Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a affected by the erroneous admission of evidence if, after examining the record as a whole, a reviewing court has a fair assurance that the error did not influence the jury, whole, a reviewing court has a 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. or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). In assessing the likelihood that the jury‘s decision was adversely affected by 2001). In assessing the likelihood that the jury’s decision was adversely affected by the error, the appellate court should consider everything in the record, including any the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury‘s consideration, the nature of testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the the evidence supporting the verdict, the character of the alleged error, and how the *33 error might be considered in connection with other evidence in the case.

See

Motilla error might be considered in connection with other evidence in the case. See Motilla v.

State

, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v. State , 63 S.W.3d v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v. State, 63 S.W.3d 442, 444-45 (Tex. Crim. App. 2001). The reviewing court should examine the entire 442, 444-45 (Tex. Crim. App. 2001). The reviewing court should examine the entire trial record and calculate, as much as possible, the probable impact of the error upon trial record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence.

Coble v. State

, 330 S.W.3d 253 (Tex. Crim. App. 2010); the rest of the evidence. Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010); Johnson v. State

, 967 S.W.2d 410 (Tex. Crim. App. 1998).

Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998).

A review of the evidence here indicates the admission of Boswell‘s gang A review of the evidence here indicates the admission of Boswell’s gang

affiliation contributed to his guilty verdict. That follows because: afﬁliation contributed to his guilty verdict. That follows because:

(1)

The State was the source of the error when it introduced irrelevant

(1) The State was the source of the error when it introduced irrelevant

evidence of character conformity; evidence of character conformity;

(2)

The State emphasized Boswell‘s gang affiliation in its closing

(2) The State emphasized Boswe1l’s gang afﬁliation in its closing

arguments at nearly every opportunity.

See

, e.g. , R.R. 7, pp. 33, 35, 36, 41, 44, 47, arguments at nearly every opportunity. See, e. g., R.R. 7, pp. 33, 35, 36, 41, 44, 47, 48, 50 and 68; 48, 50 and 68;

(3)

The State elicited evidence from every one of its witnesses that

(3) The State elicited evidence from every one of its witnesses that

Boswell was affiliated with or was the leader of the Gangster Disciples.

See

Boswell was afﬁliated with or was the leader of the Gangster Disciples. See ―Background Evidence‖ and ―Statement of Pertinent Evidence‖ above; “Background Evidence” and “Statement of Pertinent Evidence” above;

(4)

The State‘s gang expert testified at length about gangs in general

(4) The State’s gang expert testified at length about gangs in general

and the Gangster Disciples specifically; how the G.D.‘s and other gangs operated, and the Gangster Disciples speciﬁcally; how the G.D.’s and other gangs operated, with what criminal activities gangs were associated, and how he determined that with what criminal activities gangs were associated, and how he determined that *34 Boswell was not only affiliated with but the leader of the G.D‘s. He also not only Boswell was not only affiliated with but the leader of the G.D’s. He also not only described various gang symbols and their meanings to the jury but pointed to tattoos described various gang symbols and their meanings to the jury but pointed to tattoos on Boswell‘s body that he said substantiated his claims after the trial court had on Boswell’s body that he said substantiated his claims after the trial court had Boswell remove his shirt before the jury.

See

, testimony of John Bowman at R.R. Boswell remove his shirt before the jury. See, testimony of John Bowman at R.R. 6, pp. 52 through 60 and State‘s Exhibits 41 through 46. 6, pp. 52 through 60 and State’s Exhibits 41 through 46.

In sum, a great deal of the State‘s case against Boswell consisted of evidence In sum, a great deal of the State’s case against Boswell consisted of evidence

concerning Boswell‘s gang affiliation and not the robbery that resulted in Brandon‘s concerning Boswell’s gang affiliation and not the robbery that resulted in Brandon’s death. Presentation of that evidence was calculated to prejudice the jury against death. Presentation of that evidence was calculated to prejudice the jury against Boswell as a bad gangster, and as a result, that evidence likely affected his Boswell as a bad gangster, and as a result, that evidence likely affected his substantial rights to a fair trial. At the very least, in light of the record as a whole, substantial rights to a fair trial. At the very least, in light of the record as a whole, there can be no fair assessment that the error in admission of the offending evidence there can be no fair assessment that the error in admission of the offending evidence did not influence the jury or have but a slight effect on their verdict.

Solomon v.

did not inﬂuence the jury or have but a slight effect on their verdict. Solomon v. State

, 49 S.W.3d at 365.

State, 49 S.W.3d at 365.

ISSUE TWO RESTATED

8. ISSUE TWO RESTATED

The trial court abused its discretion by denying Boswell‘s motion for new trial

The trial court abused its discretion by denying Boswell’s motion for new trial

based on a Brady 5 violation when the prosecution failed to disclose a witness‘ history based on aBrady5 violation when the prosecution failed to disclose a witness’ history of reprimands while serving as a police officer. of reprimands while serving as a police officer.

*35 9.

ISSUE THREE RESTATED

9. ISSUE THREE RESTATED

The trial court abused its discretion by denying Boswell‘s motion for new trial

The trial court abused its discretion by denying Boswell’s motion for new trial

based on a

Brady

violation when it was shown that the prosecution failed to disclose based on a Brady violation when it was shown that the prosecution failed to disclose the disciplinary history of a former police officer who testified as the State‘s ―gang the disciplinary history of a former police officer who testified as the State’s “gang expert‖ where the records not only showed the witness‘s bias but offered substantial expert” where the records not only showed the witness’s bias but offered substantial basis for impeachment. basis for impeachment.

STATEMENT OF PERTINENT EVIDENCE

In post-conviction proceedings, Boswell argued that the State had failed to

disclose impeachment/bias evidence regarding its ―gang expert‖ witness, John disclose impeachment/bias evidence regarding its “gang expert” witness, John Bowman. Here, evidence is adduced related to both issues two and three. Bowman. Here, evidence is adduced related to both issues two and three.

Bowman, as noted above, testified extensively about the Gangster Disciples Bowman, as noted above, testiﬁed extensively about the Gangster Disciples

and his findings with regard to Boswell‘s involvement with and leadership of that and his ﬁndings with regard to Boswell’s involvement with and leadership of that gang. (

See

, R.R. 6, pp. 26-79). Bowman‘s testimony was the last, and arguably gang. (See, R.R. 6, pp. 26-79). Bowman’s testimony was the last, and arguably most damning, testimony presented by the State. His testimony focused on the most damning, testimony presented by the State. His testimony focused on the gang‘s activities in Texas and in Killeen in particular, as well as Boswell‘s alleged gang’s activities in Texas and in Killeen in particular, as well as Boswell’s alleged influence and power within the gang. He testified that Boswell was not just a inﬂuence and power within the gang. He testified that Boswell was not just a member of the gang but, in fact, the ―Governor‖ or boss of the Gangster Disciples member of the gang but, in fact, the “Govemor” or boss of the Gangster Disciples in Central Texas. (R.R. 6, p. 58). Bowman testified that ―these guys‖ have been in Central Texas. (R.R. 6, p. 58). Bowman testified that “these guys” have been involved in as much criminal activity as any ―organization in the history of Killeen.‖ involved in as much criminal activity as any “organization in the history of Killeen.” *36 (R.R. 6, p. 52). He identified and interpreted Boswell‘s tattoos after the trial court (R.R. 6, p. 52). He identiﬁed and interpreted Boswell’s tattoos after the trial court ordered Boswell to remove his shirt before the jury during trial – a not innocuous ordered Boswell to remove his shirt before the jury during trial — a not innocuous event when the State had photographs available for the jury‘s inspection. (R.R. 6, event when the State had photographs available for the jury’s inspection. (R.R. 6, p. 54). Lastly, Bowman testified that he actually aided in the murder investigation p. 54). Lastly, Bowman testified that he actually aided in the murder investigation itself, and, as a result, he reported on statements he personally took from one of the itself, and, as a result, he reported on statements he personally took from one of the participants in the robbery, Daniel Carruth (―D.C.‖) and from the owner of the house participants in the robbery, Daniel Carruth (“D.C.”) and from the owner of the house where the planning for the robbery allegedly occurred, Timothy Skobel. (R.R. 6, where the planning for the robbery allegedly occurred, Timothy Skobel. (R.R. 6, pp. 65-70). pp. 65-70).

During the hearing on Boswell‘s motion for new trial, Bowman acknowledged During the hearing on Boswell’s motion for new trial, Bowman acknowledged

that he had been disciplined by the Killeen Police Department while employed as a that he had been disciplined by the Killeen Police Department while employed as a sergeant with that department. He testified that he had, in fact, accepted a 56-day sergeant with that department. He testified that he had, in fact, accepted a 56-day unpaid suspension from the Department followed immediately by his retirement in unpaid suspension from the Department followed immediately by his retirement in May, 2014, after he admitted to the Department that he had committed at least six May, 2014, after he admitted to the Department that he had committed at least six violations of the Department‘s policies. (

See

, Defendant‘s Motion Exhibit A, C.R. Violations of the Department’s policies. (See, Defendant’s Motion Exhibit A, C.R. 1, pp. 87, 96-123). That information had not been provided to Boswell‘s counsel. 1, pp. 87, 96-123). That information had not been provided to Boswell’s counsel. Neither had Bowman mentioned those disciplinary actions during his testimony in Neither had Bowman mentioned those disciplinary actions during his testimony in trial. Finally, he acknowledged that the disciplinary actions were omitted from his trial. Finally, he acknowledged that the disciplinary actions were omitted from his curriculum vitae (c.v.) provided to the jury when the State presented him as an curriculum vitae (c.v.) provided to the jury when the State presented him as an ―expert‖ on gangs and gang activity. (

See

, R.R. 6, p. 27 (State‘s Exhibit 36) and “expert” on gangs and gang activity.

(See, R.R. 6, p. 27 (State’s Exhibit 36) and *37 Defendant‘s Motion (Exhibit B) (C.R. 1, p. 125)). Boswell argued that the omission Defendant’s Motion (Exhibit B) (C.R. 1, p. 125)). Boswell argued that the omission of that information from Bowman‘s c.v. and the State‘s failure to disclose the of that information from Bowman’s c.V. and the State’s failure to disclose the information before trial constituted violations of

Brady

and the dictates of its information before trial constituted violations of Brady and the dictates of its progeny including

Kyles v. Whitley

, 514 U.S. 419 (1995) and Giglio v. U.S. , 405 progeny including Kyles v. Whitley, 514 US. 419 (1995) and Giglio v. U.S., 405 U.S. 150, 92 S. Ct. 763, 31 L.Ed.2d 104 (1972). Had the defense had this U.S. 150, 92 S. Ct. 763, 31 L.Ed.2d 104 (1972). Had the defense had this information, Boswell‘s counsel argued, Bowman‘s credibility could have been information, Boswell’s counsel argued, Bowman’s credibility could have been impeached and his bias shown to the jury. (R.R. 9, pp. 44-46). However, after impeached and his bias shown to the jury. (R.R. 9, pp. 44-46). However, after hearing testimony and argument of counsel, the trial court denied Boswell‘s motion hearing testimony and argument of counsel, the trial court denied Boswell’s motion for new trial. (R.R. 9, p. 32). for new trial. (RR. 9, p. 32).

APPLICABLE LAW – NEW TRIAL

APPLICABLE LAW — NEW TRIAL

The trial court must grant the defendant a new trial for any of the reasons The trial court must grant the defendant a new trial for any of the reasons

articulated in

TEX. R. APP. P. 21.3

, including ―when the verdict is contrary to the articulated in TEX. R. APP. P. 21.3, including “when the Verdict is contrary to the law and the evidence.‖

TEX. R .APP. P. 21.3(h)

. ―The trial court retains the law and the evidence.” TEX. R .APP. P. 21.3(h). “The trial court retains the discretionary power to grant a new trial for any legal reason not listed in

TEX. R.

discretionary power to grant a new trial for any legal reason not listed in TEX. R. APP. P. 21.3

.‖

State v. Vigil , No. 08-13-00273-CR, 2015 WL 2353507, at *3 (Tex. APP. P. 21.3.” State v. Vigil, No. 08-13-00273-CR, 2015 WL 2353507, at *3 (Tex. App. – El Paso May 15, 2015,

no pet

.)( not designated for publication ). While ―[t]he App. — El Paso May 15, 2015, no pet.)(n0t designated for publication). While “[t]he defendant need not establish reversible error as a matter of law before the trial court defendant need not establish reversible error as a matter of law before the trial court may exercise its discretion in granting a motion for new trial (,) … trial courts do may exercise its discretion in granting a motion for new trial (,) trial courts do not have the discretion to grant a new trial unless the defendant demonstrates that not have the discretion to grant a new trial unless the defendant demonstrates that *38 his first trial was seriously flawed and that the flaws adversely affected his his first trial was seriously ﬂawed and that the ﬂaws adversely affected his substantial rights to a fair trial.‖

Herndon v. State

, 215 S.W.3d 901, 909 (Tex. Crim. substantial rights to a fair trial.” Herndon v. State, 215 S.W.3d 901, 909 (Tex. Crim. App. 2007. App. 2007. STANDARD OF REVIEW— NEW TRIAL STANDARD OF REVIEW— NEW TRIAL

A reviewing court reviews the trial court‘s denial of a new trial for abuse of A reviewing court reviews the trial court’s denial of a new trial for abuse of

discretion.

State v. Herndon

, 215 S.W.3d at 906. In reviewing that denial, ―[an discretion. State v. Herndon, 215 S.W.3d at 906. In reviewing that denial, “[an appellate court] looks to the grounds pleaded by the movant in the motion and appellate court] looks to the grounds pleaded by the movant in the motion and determines whether any of those grounds provide a basis for granting the new trial.‖ determines whether any of those grounds provide a basis for granting the new trial.” State v. Fury , 186 S.W.3d 67, 73 (Tex. App. – Houston [1 st Dist.] 2005, pet. ref’d ). State v. Fury, 186 S.W.3d 67, 73 (Tex. App. — Houston [l5‘Dist.] 2005,pet. ref’d). A trial judge ―cannot grant a new trial on mere sympathy, an inarticulate hunch, or A trial judge “cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because he personally believes that the defendant is innocent or received a simply because he personally believes that the defendant is innocent or received a raw deal.‖

Herndon

, 215 S.W.3d at 907 [Internal quotation marks omitted]. raw deal.” Herndon, 215 S.W.3d at 907 [Internal quotation marks omitted]. Instead, even where a defendant urges a new trial on interest of justice grounds, ―[a] Instead, even where a defendant urges a new trial on interest of justice grounds, “[a] motion for a new trial, whether for guilt or punishment, requires a valid legal claim.‖ motion for a new trial, whether for guilt or punishment, requires a valid legal claim.” State v. Thomas

, 428 S.W.3d 99, 107 (Tex. Crim. App. 2014). ―To grant a new trial

State v. Thomas, 428 S.W.3d 99, 107 (Tex. Crim. App. 2014). “To grant a new trial for a non-legal or legally invalid reason is an abuse of discretion.‖

Herndon

, 215 for a non-legal or legally invalid reason is an abuse of discretion.” Hemdon, 215 S.W.3d at 907. While the Court of Criminal Appeals has declined to set bright-line S.W.3d at 907. While the Court of Criminal Appeals has declined to set bright-line rules for the appellate courts to use in assessing whether the trial court abused its rules for the appellate courts to use in assessing whether the trial court abused its discretion on a ground not enumerated in

TEX. R. APP. P. 21.3

, the Court of discretion on a ground not enumerated in TEX. R. APP. P. 21.3, the Court of *39 Criminal Appeals has suggested ―a trial court would not generally abuse its Criminal Appeals has suggested “a trial court would not generally abuse its discretion in granting a motion for new trial if the defendant: (1) articulated a valid discretion in granting a motion for new trial if the defendant: (1) articulated a valid legal claim in his motion for new trial; (2) produced evidence or pointed to evidence legal claim in his motion for new trial; (2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim; and (3) showed prejudice to his in the trial record that substantiated his legal claim; and (3) showed prejudice to his substantial rights under the standards in

Rule 44.2

of the Texas Rules of Appellate substantial rights under the standards in Rule 44.2 of the Texas Rules of Appellate Procedure.‖

Herndon

, 215 S.W.3d at 909. Procedure.” Herndan, 215 S.W.3d at 909.

APPLICABLE LAW –

BRADY VIOLATIONS APPLICABLE LAW — BRADY VIOLATIONS

Due process requires prosecutorial disclosure of information material to guilt Due process requires prosecutorial disclosure of information material to guilt

or innocence that is favorable to the defendant.

Brady

, 373 U.S. at 87-88, 83 S. Ct. or innocence that is favorable to the defendant. Brady, 373 U.S. at 87-88, 83 S. Ct. at 1196-97. This rule recognizes the reality that suppression of such evidence would at 1196-97. This rule recognizes the reality that suppression of such evidence would give the State an unfair advantage in ―shap(ing) a trial that bears heavily on the give the State an unfair advantage in “shap(ing) a trial that bears heavily on the defendant(;)‖ the affirmative disclosure requirements imposed by

Brady

help to defendant(;)” the afﬁrmative disclosure requirements imposed by Brady help to avoid ―casting the prosecutor in the role of an architect of a proceeding that does not avoid “casting the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.‖

Id

. at 88, 83 S. Ct. at 1197. comport with standards of justice.” Id. at 88, 83 S. Ct. at 1197.

―A

Brady

violation occurs when the state suppresses, willfully or “A Brady violation occurs when the state suppresses, willfully or

inadvertently, evidence favorable to a defendant.‖

Harm v. State

, 183 S.W.3d 403, inadvertently, evidence favorable to a defendant.” Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). A defendant states a proper

Brady

claim where: (1) 406 (Tex. Crim. App. 2006). A defendant states a proper Brady claim where: ( 1) ―the State fails to disclose evidence, regardless of the prosecution‘s good faith or “the State fails to disclose evidence, regardless of the prosecution’s good faith or bad faith;‖ (2) ―the withheld evidence is favorable to him;‖ (3) ―the evidence is bad faith;” (2) “the withheld evidence is favorable to him;” (3) “the evidence is *40 material, that is, there is a reasonable probability that had the evidence been material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different[;]‖ and (4) ―the disclosed, the outcome of the trial would have been different[;]” and (4) “the evidence central to the

Brady

claim [is] admissible in court.‖ Pena v. State , 353 evidence central to the Brady claim [is] admissible in court.” Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011). S.W.3d 797, 809 (Tex. Crim. App. 2011).

―The state‘s duty to reveal

Brady

material to the defense attaches when the “The state’s duty to reveal Brady material to the defense attaches when the

information comes into the state‘s possession, whether or not the defense requested information comes into the state’s possession, whether or not the defense requested the information.‖

Harm

, 183 S.W.3d at 407. ―However, the state is not required to the information.” Harm, 183 S.W.3d at 407. “However, the state is not required to seek out exculpatory evidence independently on appellant‘s behalf, or furnish seek out exculpatory evidence independently on appellant’s behalf, or furnish appellant with exculpatory or mitigating evidence that is fully accessible to appellant appellant with exculpatory or mitigating evidence that is ﬁally accessible to appellant from other sources.‖

Id

. ―Favorable evidence is any evidence that, if disclosed and from other sources.” Id. “Favorable evidence is any evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal. It used effectively, may make the difference between conviction and acquittal. It includes both exculpatory

and impeachment evidence

.‖ Id . ―Exculpatory evidence includes both exculpatory and impeachment evidence.” Id. “Exculpatory evidence is testimony or other evidence which tends to justify, excuse or clear the defendant is testimony or other evidence which tends to justify, excuse or clear the defendant from alleged fault or guilt.‖

Id

at 866-67. ―Impeachment evidence is that which is from alleged fault or guilt.” Id at 866-67. “Impeachment evidence is that which is offered to dispute, disparage, deny, or contradict.‖

Little v. State

, 991 S.W.2d 864, offered to dispute, disparage, deny, or contradict.” Little v. State, 991 S.W.2d 864, 867 (Tex. Crim. App. 1999). 867 (Tex. Crim. App. 1999). ARGUMENT ARGUMENT

In Boswell‘s post-conviction hearing, Bowman admitted to the authenticity of In Boswell’s post-conviction hearing, Bowman admitted to the authenticity of

the records which formed the basis of the impeachment/bias evidence even as he the records which formed the basis of the impeachment/bias evidence even as he *41 tried to offer mitigation of his actions the subject of those disciplinary records. (R.R. tried to offer mitigation of his actions the subject of those disciplinary records. (R.R. 9, pp. 14-15). It was also established in the hearing that the prosecution, however 9, pp. 14-15). It was also established in the hearing that the prosecution, however inadvertently, did not provide the impeachment/bias materials to the defense. (R.R. inadvertently, did not provide the impeachment/bias materials to the defense. (RR. 9, pp. 40-41). 9, pp. 40-41).

Brady

and its progeny such as

Giglio require the state to disclose all material Brady and its progeny such as Giglio require the state to disclose all material

evidence that could exculpate the defendant, including evidence that could be used evidence that could exculpate the defendant, including evidence that could be used to impeach any of the prosecution witnesses or undermine the prosecution‘s case. to impeach any of the prosecution witnesses or undermine the prosecution’s case. Those requirements are so well established that it should have controlled the post- Those requirements are so well established that it should have controlled the post- conviction court‘s ruling on Boswell‘s motion. Here, the records attached to conviction court’s ruling on Boswell’s motion. Here, the records attached to Boswell‘s motion for new trial consisted of documents from Bowman‘s personnel Boswell’s motion for new trial consisted of documents from Bowman’s personnel file which, had Boswell receive them prior to trial, he could have used to establish file which, had Boswell receive them prior to trial, he could have used to establish bias on Bowman‘s part in testifying for the State. Boswell showed, for example, bias on Bowman’s part in testifying for the State. Boswell showed, for example, that Bowman‘s curriculum vitae referenced a number of prior occasions Bowman that Bowman’s curriculum vitae referenced a number of prior occasions Bowman had testified in gang-related cases; that Bowman‘s trial testimony in this case would had testified in gang-related cases; that Bowman’s trial testimony in this case would pad that accomplishment, and, most importantly for showing bias, that Bowman was pad that accomplishment, and, most importantly for showing bias, that Bowman was using that curriculum vitae to promote himself within the law enforcement field in using that curriculum vitae to promote himself within the law enforcement field in efforts to land another job in law enforcement. (R.R. 9, pp. 26-28). With regard to efforts to land another job in law enforcement. (R.R. 9, pp. 26-28). With regard to bias, a witness‘s interest or motive to testify is a critical area of inquiry on cross- bias, a witness’s interest or motive to testify is a critical area of inquiry on cross- examination.

Davis v. Alaska

, 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974). examination. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L.Ed.2d 347 (1974).

*42 The records themselves included materials that undermined Bowman‘s The records themselves included materials that undermined Bowman’s

veracity under oath because the disciplinary actions centered on misstatements of veracity under oath because the disciplinary actions centered on misstatements of fact that he had made to his superiors before his forced resignation. (R.R. 9, pp. 22- fact that he had made to his superiors before his forced resignation. (R.R. 9, pp. 22- 23). Concerning impeachment evidence, the United States Supreme Court has noted 23). Concerning impeachment evidence, the United States Supreme Court has noted that, ―[t]he jury‘s estimate of the truthfulness and reliability of a given witness may that, “[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant‘s life or liberty possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.‖

Napue v. Illinois

, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L.Ed.2d 1217 may depend.” Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L.Ed.2d 1217 (1959).

(1959).

The key issue here is whether the evidence the subject of Boswell‘s motion The key issue here is whether the evidence the subject of Boswell’s motion

for new trial was ―material,‖ (

i.e.

, prejudicial to the defendant) when viewed in light for new trial was “material,” (i. e., prejudicial to the defendant) when viewed in light of the other evidence presented at trial. Evidence is deemed material ―only if there of the other evidence presented at trial. Evidence is deemed material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.‖

United States v.

probability sufﬁcient to undermine confidence in the outcome.” United States v. Bagley

, 473 U.S. 667, 672, 105 S. Ct. 3375, 87, 87 L.Ed.2d 481 (1985). The answer

Bagley, 473 US 667, 672, 105 S. Ct. 3375, 87, 87 L.Ed.2d 481 (1985). The answer to the materiality issue though is

not

whether the defendant would probably have to the materiality issue though is not whether the defendant would probably have received a different verdict with the evidence,…―but whether in its absence he received a different verdict with the evidence,...“but whether in its absence he *43 received a fair trial, understood as a trial resulting in a verdict worthy of confidence.‖ received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley

, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L.Ed.2d 490 (1995).

Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L.Ed.2d 490 (1995).

Evidence of Boswell‘s actual involvement in the robbery came only from Evidence of Boswell’s actual involvement in the robbery came only from

accomplices who each had a motive to testify favorably for the State. One witness, accomplices who each had a motive to testify favorably for the State. One witness, Paul Sterling, claimed that Boswell had ―ordered‖ the robbery, but Sterling never Paul Sterling, claimed that Boswell had “ordered” the robbery, but Sterling never made that assertion in the initial statement he gave to police following his arrest. (R. made that assertion in the initial statement he gave to police following his arrest. (R. R. 5, p. 82). Further, at time of trial, Sterling had still not been charged with any R. 5, p. 82). Further, at time of trial, Sterling had still not been charged with any offense because, according to him, he had refused to participate in the robbery. (R.R. offense because, according to him, he had refused to participate in the robbery. (R.R. 5, pp. 64, 68). Danny Carruth, a participant in the robbery, also testified that Boswell 5, pp. 64, 68). Danny Carruth, a participant in the robbery, also testiﬁed that Boswell was the G.D.‘s leader who told him to watch by the door as three other robbers was the G.D.’s leader who told him to watch by the door as three other robbers entered Arrington‘s house to rob him. (R.R. 5, pp. 140, 143). Notably, despite his entered Arrington’s house to rob him. (R.R. 5, pp. 140, 143). Notably, despite his admitted participation in the robbery resulting in Brandon‘s death, Carruth had not admitted participation in the robbery resulting in Brandon’s death, Carruth had not been indicted for capital murder at time of trial, and he admitted that he was ―hoping been indicted for capital murder at time of trial, and he admitted that he was “hoping to keep it that way.‖ (R.R. 5, p. 154). The last witness for the State, the icing on the to keep it that way.” (R.R. 5, p. 154). The last witness for the State, the icing on the State‘s cake as it were, was Bowman, the State‘s gang expert. It was Bowman who State’s cake as it were, was Bowman, the State’s gang expert. It was Bowman who provided a detailed analysis of the Gangster Disciples through the years, their provided a detailed analysis of the Gangster Disciples through the years, their corporate structure, their criminal activities, their extensive gang signs and tattoos corporate structure, their criminal activities, their extensive gang signs and tattoos and, perhaps as damaging evidence as introduced in trial, a description of the G.D.s and, perhaps as damaging evidence as introduced in trial, a description of the G.D.s as the most extensive criminal gang in Killeen‘s history. (R.R. 6, pp. 35, 58). as the most extensive criminal gang in Killeen’s history. (R.R. 6, pp. 35, 58). *44 Moreover, it was Bowman whose testimony bolstered that of the two gang members Moreover, it was Bowman whose testimony bolstered that of the two gang members who testified and whose interest and bias in favor of the State was shown during who testified and whose interest and bias in favor of the State was shown during cross-examination. Those gang members‘ testimony was crucial to proof of cross-examination. Those gang members’ testimony was crucial to proof of Boswell‘s status as leader of the G.D. gang and of his involvement in the planning Boswell’s status as leader of the G.D. gang and of his involvement in the planning of the robbery. As a result, any evidence from any source that tended to corroborate of the robbery. As a result, any evidence from any source that tended to corroborate or to bolster

their

testimony became crucial to the outcome of the State‘s case. or to bolster their testimony became crucial to the outcome of the State’s case. Finally, Bowman‘s testimony did not merely serve to provide insight into the gang‘s Finally, Bowman’s testimony did not merely serve to provide insight into the gang’s activities, it also provided information to the jury different in kind to that of the activities, it also provided information to the jury different in kind to that of the State‘s other witnesses because it served to buttress gang members‘ allegations State’s other witnesses because it served to buttress gang members’ allegations against Boswell and to undermine the latter‘s attempts to prove that the witnesses‘ against Boswell and to undermine the latter’s attempts to prove that the witnesses’ against him gave self-serving and biased testimony. against him gave self-serving and biased testimony.

In the case of

Johnson v. Mills

, 592 F.3d 730 (2010), the court noted that In the case of Johnson v. Mills, 592 F.3d 730 (2010), the court noted that

jurors often have a negative predisposition toward informants. ―Ordinary decent jurors often have a negative predisposition toward informants. “Ordinary decent people are predisposed to dislike, distrust, and frequently despise criminals who ‗sell people are predisposed to dislike, distrust, and frequently despise criminals who ‘sell out‘ and become prosecution witnesses. Jurors suspect their motives from the out’ and become prosecution witnesses. Jurors suspect their motives from the moment they hear about them in a case, and they frequently disregard their testimony moment they hear about them in a case, and they frequently disregard their testimony altogether as highly untrustworthy and unreliable....‖

Id

. citing Stephen S. Troft, altogether as highly untrustworthy and unreliable...” Id. citing Stephen S. Troft, Words of Warning for Prosecutors Using Criminals as Witnesses

, 47 Hastings, L.J.

Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings, L.J. *45 1391, 1395 (1966). In light of that, any evidence supporting such testimony is made 1391, 1395 (1966). In light of that, any evidence supporting such testimony is made the more material. the more material.

In a case involving the exclusion of evidence of an officer‘s disciplinary In a case involving the exclusion of evidence of an ofﬁcer’s disciplinary

record,

In the Matter of C.F.C

., the Court of Appeals held that exclusion of such record, In the Matter of C.F.C., the Court of Appeals held that exclusion of such evidence in that case was not error. 1999 WL 675440, Tex. App. – San Antonio, evidence in that case was not error. 1999 WL 675440, Tex. App. — San Antonio, August 31, 1999 (

not designated for publication

). There, defense counsel learned August 31, 1999 (not designated for publication). There, defense counsel learned during trial that a police officer had been reprimanded by his department. Counsel during trial that a police officer had been reprimanded by his department. Counsel argued that the reprimand was admissible to impeach the officer and that the argued that the reprimand was admissible to impeach the officer and that the reprimand demonstrated bias and a motive to fabricate portions of the officer‘s reprimand demonstrated bias and a motive to fabricate portions of the off1cer’s testimony. The appeals court disagreed, but it did so only after it determined that testimony. The appeals court disagreed, but it did so only after it determined that the probative value of the incidents the subject of the reprimand which might the probative value of the incidents the subject of the reprimand which might establish bias or a motive to fabricate testimony was marginal. It reached that establish bias or a motive to fabricate testimony was marginal. It reached that conclusion because the incidents that led to the reprimands had, in fact, occurred conclusion because the incidents that led to the reprimands had, in fact, occurred after

the offense the subject of its current trial. Thus, in that case, the court reasoned

after the offense the subject of its current trial. Thus, in that case, the court reasoned that whether the officer had been disciplined for violating police procedures was not that whether the officer had been disciplined for violating police procedures was not relevant to a motive for lying in the case before it. The relevance, the materiality of relevant to a motive for lying in the case before it. The relevance, the materiality of the impeachment/bias evidence was, he court reasoned, at best only theoretical. the impeachment/bias evidence was, he court reasoned, at best only theoretical. C.F.C., 1999 WL 675440 at *5

.

C.F.C., 1999 WL 675440 at *5. Cause No. 03-15-00540-CR Cause No. 03-l5-00540-CR

*46 In Saldivar v. State , 980 S.W.2d 475 (Tex. App. – Houston [14 th Dist.] 1998, In Saldivar v. State, 980 S.W.2d 475 (Tex. App. — Houston [l4“‘ Dist.] 1998,

in a case where defendant discovered an undisclosed conviction for a state‘s witness, in a case where defendant discovered an undisclosed conviction for a state’s witness, the court of appeals again found that undisclosed evidence of prior convictions was the court of appeals again found that undisclosed evidence of prior convictions was immaterial for impeachment purposes. The appellate court reached that conclusion, immaterial for impeachment purposes. The appellate court reached that conclusion, however, only after it determined that defendant was able to accomplish his goal to however, only after it determined that defendant was able to accomplish his goal to impeach the witness‘ credibility by using her prior inconsistent statements in lieu of impeach the witness’ credibility by using her prior inconsistent statements in lieu of evidence of her convictions. evidence of her convictions.

The Third Court of Appeals, in

DeLeon v. State

, 2015 WL 3454101 (Tex. The Third Court of Appeals, in DeLe0n v. State, 2015 WL 3454101 (Tex.

App. – Austin, May 29, 2015 (petition for discretionary review November 18, 2015 App. — Austin, May 29, 2015 (petition for discretionary review November 18, 2015 (

not designated for publication

)), found that the relevance for bias in the case before (not designated for publication)), found that the relevance for bias in the case before it was ―not plainly apparent.‖ There, the court found that the State‘s motivation for it was “not plainly apparent.” There, the court found that the State’s motivation for disclosing a recording to law enforcement did not have an effect on the jury‘s disclosing a recording to law enforcement did not have an effect on the jury’s consideration. Apparently, the court reached that conclusion at least in part because, consideration. Apparently, the court reached that conclusion at least in part because, as its opinion noted, appellant was able to challenge the witness‘ credibility in other as its opinion noted, appellant was able to challenge the witness’ credibility in other ways.

ways.

Finally, in

Milke v. Ryan

, 711 F.3d 998 (2013), the United States Ninth Finally, in Milke v. Ryan, 711 F.3d 998 (2013), the United States Ninth

Circuit Court of Appeals held that the prosecutor‘s failure to disclose a key testifying Circuit Court of Appeals held that the prosecutor’s failure to disclose a key testifying detective‘s ―long history of lies and misconduct‖ violated appellant‘s due process detective’s “long history of lies and misconduct” violated appellant’s due process rights and reversed and remanded for new trial. In that case, which noted inadvertent rights and reversed and remanded for new trial. In that case, which noted inadvertent *47 failure to disclose is enough for a

Brady

violation (citing Kyles as well as Strickler failure to disclose is enough for a Brady Violation (citing Kyles as well as Strickler v. Green

, 527 U.S. 263, 119 S. Ct. 1936, 144 L.Ed.2d 287 (1999), the Court

v. Green, 527 U.S. 263, 119 S. Ct. 1936, 144 L.Ed.2d 287 (1999), the Court reiterated that it is not necessary to find that the jury would have come out reiterated that it is not necessary to ﬁnd that the jury would have come out differently. It suffices, the Court wrote, that there is a ―reasonable probability of a differently. It sufﬁces, the Court wrote, that there is a “reasonable probability of a different result.‖

Id

. different result.” Id.

Where the State apparently deemed testimony about the Gangster Disciples Where the State apparently deemed testimony about the Gangster Disciples

sufficiently worthwhile that it spent a good deal of time in trial developing the sufficiently worthwhile that it spent a good deal of time in trial developing the evidence, and where Bowman was the sole source of most of that damning evidence, evidence, and where Bowman was the sole source of most of that damning evidence, the materiality of his testimony is even more apparent. As a result, the conclusion the materiality of his testimony is even more apparent. As a result, the conclusion cannot be reached beyond a reasonable doubt that the erroneous exclusion of the cannot be reached beyond a reasonable doubt that the erroneous exclusion of the evidence did not necessarily contribute to Boswell‘s conviction; rather, the evidence did not necessarily contribute to Boswell’s conviction; rather, the evidentiary suppression of the admitted

Brady

material undermines confidence in evidentiary suppression of the admitted Brady material undermines conﬁdence in the outcome of Boswell‘s trial. the outcome of Boswell’s trial.

13. PRAYER

WHEREFORE

, Larry Donnell Boswell, Jr. prays that this honorable court WHEREFORE, Larry Donnell Boswell, Jr. prays that this honorable court

reverse and remand this cause for retrial in accordance with its findings herein and reverse and remand this cause for retrial in accordance with its ﬁndings herein and for such other and further relief to which he may justly be entitled. for such other and further relief to which he may justly be entitled.

COPELAND LAW FIRM

*48 COPELAND LAW FIRM

P.O. Box 399

P.O. Box 399 Cedar Park, TX 78613 Cedar Park, TX 78613 Phone: 512.897.8196 Phone: 512.897.8196 Fax: 512.215.8114 Fax: 512.215.8114 Email: ecopeland63@yahoo.com Email: ecopeland63@yahoo.com By: /s/ Erika Copeland By: /s/ Erika Copeland

Erika Copeland Erika Copeland State Bar No. 16075250 State Bar No. 16075250 Attorney for Appellant Attorney for Appellant

CERTIFICATE OF SERVICE AND OF

COMPLIANCE WITH RULE 9

This is to certify that on December 14, 2015, a true and correct copy of the This is to certify that on December 14, 2015, a true and correct copy of the

above and foregoing document was served on Bob Odom, Assistant District above and foregoing document was served on Bob Odom, Assistant District Attorney of Bell County, P.O. Box 540, Belton, Texas 76513, in accordance with Attorney of Bell County, P.O. Box 540, Belton, Texas 76513, in accordance with the Texas Rules of Appellate Procedure, and that the Brief of Appellant is in the Texas Rules of Appellate Procedure, and that the Brief of Appellant is in compliance with Rule 9 of the

Texas Rules of Appellate Procedure

and that portion compliance with Rule 9 of the Texas Rules of Appellate Procedure and that portion which must be included under Rule 9.4(i)(1) contains 7202 words. which must be included under Rule 9.4(i)(1) contains 7202 words.

/s/ Erika Copeland /s/ Erika Copeland

Erika Copeland Erika Copeland

NOTES

[1] The prosecution suggested in argument that Arrington was targeted because he was known to ‘ The prosecution suggested in argument that Arrington was targeted because he was known to keep in his home ill-gotten gain that he earned through illegal enterprise. (R.R. 7, p. 70). keep in his home ill-gotten gain that he earned through illegal enterprise. (R.R. 7, p. 70).

[2] Ricky Brandon was later identified as the dead man through fingerprint comparisons against a 2Ricky Brandon was later identified as the dead man through ﬁngerprint comparisons against a fingerprint data base of known criminals. fingerprint data base of known criminals.

[3] Bowman‘s testimony was admitted over objection, and it became one of the subjects of

[3] Bowman’s testimony was admitted over objection, and it became one of the subjects of Boswell‘s motion for new trial as well as the subject of issues to follow in this brief. Evidence B0swell’s motion for new trial as well as the subject of issues to follow in this brief. Evidence pertinent to those issues will be discussed in more detail below. pertinent to those issues will be discussed in more detail below.

[4] Brady v. Maryland , 83 S. Ct. 1194, 10 L.Ed.2d 215, 373 U.S. 83 (1963) hereafter ― Brady. ‖ " Brady v. Maryland, 83 S. Ct. 1194, 10 L.Ed.2d 215, 373 U.S. 83 (1963) hereafter“Brady.”

[5] Brady v. Maryland , 83 S. Ct. 1194, 10 L.Ed.2d 215, 373 U.S. 83 (1963 hereafter ― Brady ) . ‖

[5] Brady v. Maryland, 83 S. Ct. 1194, 10 L.Ed.2d 215, 373 US. 83 (1963 hereafter“Brady).”

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