Case no

__________________________________________________ DAVID EARL HUNTER
STATE OF TEXAS
__________________________________________________ Appeal from the 361st Judicial District Court of _________________________________________________ __________________________________________________
Attorney for Appellant:
Attorney for Appellee:
ORAL ARGUMENT WAIVED
STATEMENT REGARDING ORAL ARGUMENT
Appellant is not requesting oral argument. NAMES OF ALL PARTIES
The following is a complete list of all names and addresses of all parties to the Trial Court’s final judgment and the names and addresses of all trial counsel: David Earl Hunter

Appellate Counsel:
Lane D. Thibodeaux
Thomas Reed
State of Texas

Counsel:
Bill Turner
Douglas Howell
The Honorable Steve Smith
TABLE OF CONTENTS
Statement Regarding Oral Argument . i Names of all Parties . ii-iii List of Authorities . v Statement of the Case. vi-vii
Point of Error No. One: .1-9
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
ALLOWING TESTIMONY CONCERNING FACTS SURROUNDING
THE UNDERLYING PLEA BARGAINED CRIMINAL OFFENSE
TO BE ADMITTED INTO EVIDENCE DURING THE HEARING ON
THE MOTION TO REVOKE APPELLANT’S COMMUNITY SUPERVISION
Conclusion and Relief Requested . 9 Certificate of Service . 10 LIST OF AUTHORITIES

Lone Star Gas Co. v. State,

Manning v. State,

Martin v. State,

Stewart v. State,

Valencia v. State,
891 S.W.2d 652 (Tex.App. – Houston [1st Dist.] 1993). 6
RULES

Rule 401, TEX.R.EVID. 5
Rule 44.2(b), TEX.R.APP.P. . 7
STATEMENT OF THE CASE
Appellant was formally charged by Indictment filed on or about April 6, 2006. (CR, pg. 1). As part of a plea bargain agreement struck with the State, the Indictment was amended with Appellant pleading “guilty” to a lesser charge of Possession of a Controlled Substance, Penalty Group 1, of less than a gram in a The plea bargain agreement approved by the Trial Court called for 10 years in the Institutional Division of the Texas Department of Criminal Justice (“IDTCDJ”), probated for 5 years, a $2,500 fine, 15 days in the Brazos County Jail as a condition of community supervision, and substance abuse conditions of The State filed a Motion to Revoke Probation (“Motion to Revoke”) on or about October 11, 2007. The State filed an Amended Motion to Revoke on or about October 16, 2007, adding an additional date it alleged Appellant tested Following an evidentiary hearing held on January 10, 2008 on the Amended Motion to Revoke, the Court revoked Appellant’s community supervision and sentenced him to 8 years confinement in the IDTDCJ. (Supp. CR, pg. 2-3). Appellant filed a pro se Notice of Appeal on January 18, 2008. Appellant was thereafter appointed Appellate Counsel by Order dated February 29, 2008. The Clerk’s Record is abbreviated “CR.” The Reporter’s Record is ISSUES PRESENTED
Point of Error No. One:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN ALLOWING TESTIMONY CONCERNING FACTS SURROUNDING
THE UNDERLYING PLEA BARGAINED CRIMINAL OFFENSE TO BE
ADMITTED INTO EVIDENCE DURING THE HEARING ON THE
MOTION TO REVOKE APPELLANT’S COMMUNITY SUPERVISION
STATEMENT OF FACTS
Appellant entered pleas of “true” to violations of conditions of the Trial Court’s Order placing him on community supervision. First, Appellant pled “true” to the allegation he failed to abstain from use of controlled substances on the two specific occasions alleged in the Amended Motion to Revoke as provided in condition 3 of the Order. Appellant also pled “true” to failing to perform 160 hours of community service restitution at the rate of 8 hours a week. Appellant also pled “true” to the allegation in the Amended Motion to Revoke that he failed to complete a drug offender program within 180 days of the date of the Order. Appellant plead “not true” to the remaining allegations contained in the Amended Two witnesses testified at the hearing on the State’s Amended Motion to Revoke. The first was Appellant’s community supervision (“probation”) officer, Cheryl Weaver. Ms. Weaver testified that Appellant had tested positive for cocaine twice, on September 5, 2007 and again on October 8, 2007. (RR, pg. 6). Weaver also testified that Appellant completed only two hours of community service since being placed on probation despite being ordered to complete 160 hours at a rate of 8 hours per month. (RR, pg. 7). Weaver also testified that Appellant failed to complete an outpatient counseling program that he was referred to following a substance abuse evaluation. (Id.). Weaver also testified that Appellant had been placed in Substance Abuse Felony Placement Facility (“SAFPF”) in 1997 that he successfully completed. Weaver testified Appellant was referred to an intensive outpatient program but Appellant quit attending. (RR, pg. 8). Weaver also testified to Appellant’s health issues which she testified consisted of a knee surgery, Post Traumatic Stress Disorder (“PTSD”), slipped disc, arthritis and a sleep disorder. (RR, pg. 9). Following cross-examination that highlighted that Appellant was on Veterans Administration (“V.A.”) disability and the services the V.A. could offer, and a brief redirect, the State rested on its Amended Motion. (RR, pg. 17). Appellant was the sole witness called by the defense. Appellant testified he was married to Gladys Hunter. (RR, pg. 17). Appellant also testified concerning his V.A. disability, consisting of knee problems, migraine headaches and glaucoma. (RR, pg. 18). Appellant testified that his knee problems require braces to be worn on both knees and that he was in daily, regular pain. (RR, pg. 19). Appellant also testified concerning his medical issues related to glaucoma. (RR, pg. 20). Appellant testified of his attempts to complete community service, testifying that his physical conditions prevented much in the way of physical labor and further attempts to locate and complete community service at locations that did not have a physical lifting component. (RR, pg. 21). Appellant also testified concerning his attempts to comply with the probation department directive to attend a drug offender education course. Appellant testified that, essentially, he was late to the class but called and was told to give a doctors excuse to his probation officer. The probation officer in turn did not accept it. (RR, pg. 23). Appellant testified he had a drug problem, but that SAFPF was not as good an option as services he believed were provided by the The cross-examination of Appellant by the State gives rise to the error assigned in this Brief and further factual recitation concerning the cross is deferred to the Point of Error. Following a brief redirect, the defense rested. (RR, pg. 43). Following argument, the Trial Court made comments that concluded with finding Appellant violated conditions 3, 12 and 14 as contained in the Amended Motion to Revoke and sentenced Appellant to 8 years in the IDTDCJ. (RR, pg. 47). SUMMARY OF ARGUMENT
The Trial Judge committed reversible error when he overruled objections concerning the facts underlying the original plea bargain agreement in the case. By doing so, the Trial Judge allowed inadmissible evidence concerning uncharged conduct including drugs and weapons to taint the punishment decision in this case. The Trial Court’s comments before the pronouncement of sentence indicate he considered this inadmissible testimony in making the punishment decision. As such, the inadmissible evidence was harmful and the case should be reversed and __________________________________________________ DAVID EARL HUNTER
STATE OF TEXAS
__________________________________________________ Appeal from the 361st Judicial District Court of _________________________________________________ __________________________________________________ Appellant in the above referenced cause number, files this Brief setting forth his points of error committed in the Trial Court and would show the Court the POINT OF ERROR NO. ONE
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN ALLOWING TESTIMONY CONCERNING FACTS SURROUNDING
THE UNDERLYING PLEA BARGAINED
CRIMINAL OFFENSE TO BE ADMITTED INTO EVIDENCE DURING
THE HEARING ON THE MOTION TO
REVOKE APPELLANT’S COMMUNITY SUPERVISION
A. The Factual Basis for Complaint
Two witnesses testified at the hearing on the State’s Motion to Revoke, Cheryl Weaver, Appellant’s probation officer, and Appellant. During Appellant’s testimony, the following exchange occurred. [Question by State]: You’re aware of the fact that the only reason this case
was reduced and you were given probation was because there were certain
issues about the extent of the search warrant that found the drugs?
[Answer by Appellant]: No, sir.
[Question]: That never came up in your discussion with your attorney?
[Answer]: No, sir.
[Question]: Issues about the search warrant?
[Answer]: No.
[Question]: What was found at your house that day?
[Trial counsel]: Objection, relevance.
[Trial Judge]: What’s relevant, Counsel?
[State]: I think the underlying circumstances of the case, the facts are
relevant to this court in setting punishment and determining whether to
continue the Defendant on probation, whether to modify conditions of
probation, whether to revoke his probation, the fact that --
[Trial Judge]: All right. Very briefly.
[Trial Counsel]: Your Honor, if there was a problem with the search
warrant in the original case and you he’s going to enter in evidence what
was initially found as a result of that search, I would object as evidence on
the basis of that being kept out of the original case based on probable cause.
[Trial Judge]: Overruled.
[Question by State]: 23.96 grams of Pediox; did you know that was found?
[Answer by Appellant]: I don’t know what it is.
[Question]: Okay. 4.79 grams Promethazine; you know what that is?
[Answer]: I heard of it.
[Question]: Okay. Was it there?
[Answer]: I wasn’t there.
[Question]: Well, it was your house, right?
[Answer]: Yeah, but I wasn’t there.
[Question]: Okay. 47.93 grams Albutirol?
[Answer]: I don’t know what that is.
[Question]: Okay. 4.32 grams of crack cocaine in an Altoid’s box?
[Answer]: That’s what they said they found in the shed.
[Question]: 4.57 grams of powder cocaine in a plastic bag?
[Answer]: I wasn’t there.
[Question]: 13.41 grams of marijuana in a plastic bag?
[Answer]: All these things was said to be found there, but I wasn’t there.
And I been in trouble before, so to take twenty years, or something like that,
when my attorney came to me and said look –
[Question]: I’m just asking you are you aware that was part of the original
search?
[Answer]: Yeah, but I wasn’t there when they found any of these things.
[Question]: Okay. But you plead guilty to things that were found as a
result of that search?
[Answer]: I plead guilty by my attorney telling me to, I should plead guilty
to five years probation.
[Question]: Okay. What about eight firearms that are located in the master
bedroom, you know those were there?
[Answer]: I knew it was a couple of firearms. I don’t know about eight.
[Question]: You don’t know about eight rifles, pistols, shotguns?
[Answer]: No, I don’t think it was that many there.
[Question]: You don’t think it was eight.
[Answer]: No, sir.
[Question]: Was it more than two?
[Answer]: It was probably three.
[Question]: At the time of the search were you a convicted felon?
[Answer]: Was I a convicted felon?
[Question]: Yes.
[Answer]: No, sir. You mean ex-felon? I wasn’t on probation or anything
at the time.
[Trial Judge]: Have you previously been convicted of a felony before this
charge?
[Answer]: Yes, sir.
(RR, pg. 36, ln. 1 – pg. 39, ln. 14).
B. Standard of Review
A trial court’s evidentiary rulings are reviewed under an abuse of discretion standard on appeal. Martin v. State, 173 S.W.3d 463, 467 (Tex.Crim.App. 2005).
A trial court abuses its discretion when it acts arbitrarily or fails to analyze or apply the law correctly. See Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.
C. Argument and Authority
Appellant’s trial attorney objected to the testimony on relevancy grounds. To be relevant under Rule 401 of the Texas Rules of Evidence, the testimony needed only to “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, TEX.R.EVID. To be relevant to the proposition sought to be proved, the evidence need not make the proposition more likely than not. It is sufficient if the proffered evidence provides only “a small nudge toward proving or disproving some fact of consequence.” Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App. 2004).
In this case, questions related to the underlying facts of the case on which Appellant was on probation could be justified as contextual evidence or general background evidence necessary to allow the judge to make an informed decision 1 Trial Counsel did not ask for a running objection. regarding whether to modify Appellant’s probation, revoke it and remand him to the custody of the Institutional Division of the Texas Department of Criminal Justice for a term of not more than 10 years, or do nothing. General background evidence is relevant. See, e.g. Lone Star Gas Co. v.
State, 137 Tex. 279, 313-14, 153 S.W.2d 681, 699-700 (1941) (admitting evidence
of events and conditions surrounding an administrative order to show (the validity of that order); Valencia v. State, 891 S.W.2d 652 (Tex.App. – Houston [1st Dist.]
1993) (description of police officers’ assignment to Organized Crime Narcotics Task Force was relevant background evidence for jury to assess testimony’s weight) vacated on other grounds 946 S.W.2d 81 (Tex.Crim.App. 1997). In this case, however, no relevance on the ultimate issue exists regarding the underlying facts of the crime for which the case had been plea bargained. The State sought to elicit from Appellant that as originally charged the case carried a minimum of 10 years in prison. (RR, pg. 36, lns. 8-9). The prosecutor went on to ask Appellant about the plea offer and whether Appellant had discussed the reason behind the significantly reduced plea offer with his lawyer in the original case.
A myriad of reasons could exist for the reduction, but the fact of the matter is that the plea bargain struck originally by the State and Appellant recognized that 2 Both questions were improper under Rule 410 (inadmissibility of pleas and plea discussions) and 503 (lawyer-client privilege) of the Texas Rules of Evidence. Trial Counsel did not object. The entire line of questioning, including that testified to over objection, was an attempt to demonstrate that Appellant somehow “got a break” in the agreed upon plea as a result of a questionable search. The Trial Judge obviously agreed. (RR, pg. 47, lns. 10-14). significant risk existed on both sides. The same reasoning applies to the State’s questions to Appellant regarding the drugs found, the weight of those drugs (RR, pg. 37, lns. 14-25; pg. 38, lns. 1-10), and the entire line of questions concerning the weapons found in the home and his status as an ex-felon. (RR, pg. 38, lns. 19-25; Appellant submits this line of questioning amounted to allowing the State to re-litigate the case as originally charged without having to re-litigate issues which motivated the State to offer a plea bargain that by all accounts recognized the likelihood that the State would not have survived a suppression motion. The plea bargain agreement acted as res judicata. The underlying factual issues, including the issues inquired about by the State from Appellant, were irrelevant under the Texas Rules of Evidence on the issues concerning how to punish Appellant on a D. Harmful Error
The error complained of in this case is non-constitutionally dimensioned error under Rule 44 of the Texas Rules of Appellate Procedure. To be harmful therefore, the error must affect the substantial rights of the accused. Rule 44.2(b), 3 The record is silent on the exact charge on which Appellant was previously convicted except for Appellant’s testimony that it was a “drug charge.” No evidence was introduced that Appellant was charged with possession of a firearm by a felon. At the conclusion of the hearing, the Judge observed the following related to [Trial Judge]: He got his first break when a mandatory ten-year to life or
99 was reduced down to a third degree felony. That was his first chance.
His second chance was when he got put on probation for that offense.
(RR, pg. 47, lns. 10-14).
The Trial Judge’s comment that Appellant “[g]ot his first break” when “a
mandatory ten year to life or 99 was reduced down to a third degree felony” demonstrate the inadmissible evidence figured significantly in his punishment decision. The evidence on which the judge was relying in making this observation was the evidence objected to relating to the underlying facts of the case. More to the point, the Trial Judge’s observation that the Appellant “got a break” by the reduction ignores that the State agreed to reduce the original charge, not because it was giving Appellant “a break,” but because it sought to salvage something from a search that it deemed subject to suppression. The same logic applies to the “second” break the Trial Judge specifically cited in his comments before pronouncing Appellant’s sentence. The Trial Judge commented that Appellant received a break when “he got probation for that offense.” That probation was offered by the State agreed to by Appellant and approved of originally by the Trial Court, does not evince “a break,” but a realistic appreciation for the risks and benefits of a certain course of action that the Trial Court retroactively took into consideration in making a punishment decision on the Motion to Revoke. That the Trial Judge by his comments found this to be aggravating circumstances leading to his punishment decision demonstrates the Moreover, the testimony at the hearing was sparse. Only two witnesses testified. The Trial Judge mentioned specifically three “breaks” received by Appellant which contributed to the Trial Judge’s punishment decision. Two of these “breaks” were based upon, Appellant maintains, inadmissible evidence. Appellant submits this demonstrates that the substantial rights of Appellant were affected by the inadmissible evidence complained of in this appeal. CONCLUSION AND RELIEF REQUESTED
Appellant requests the decision of the Trial Court related to punishment on the State’s Motion to Revoke Appellant’s Community Supervision be reversed and BY: ___________________________________ Attorney for Appellant
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was forwarded to counsel of record listed below on the ______ day of _________, 2008: Via Hand Delivery

DOUG HOWELL
Assistant Brazos County District Attorney
Brazos County Courthouse
300 East 26th Street, Suite 310
Bryan, Texas 77803
____________________________________

Source: http://www.10thcoa.courts.state.tx.us/ebriefs/2008/08053CR-AntBrf-091808.pdf