Anguiano v. State

Full title: Hector Anguiano Appellant v. State of Texas Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 15, 2023

No. 05-22-00680-CR (Tex. App. Jun. 15, 2023)

Opinion

05-22-00680-CR 05-22-00686-CR

06-15-2023

Hector Anguiano Appellant v. State of Texas Appellee

Kristin R. Brown Texas Bar No. 24081458 Attorney for Appellant

On Appeal from Criminal District Court Six, Dallas County, Texas, Cause Numbers F1776221 and F1776222

Kristin R. Brown

Texas Bar No. 24081458

Attorney for Appellant

ORAL ARGUMENT IS NOT REQUESTED

I. Identities of Parties and Counsel

Judiciary:	Hon. Gary Stephens Hon. Jeanine Howard
Appellant:	Hector Anguiano
Defense Counsel-Trial:	Steve Salazar, SBN 17427400 Luis Merren, SBN 13957500
Gov't Counsel-Trial:	Kathryn Mitchell, SBN 24093769 Erik Lisowski, SBN 24096968
Appellate Counsel:	Kristin R. Brown, Appellant Dallas County DAO, Appellee

II. Table of Contents

I. Identities of Parties and Counsel.....................................................................2

II. Table of Contents...........................................................................................3

III. Index of Authorities........................................................................................6

IV. Statement of the Case and Jurisdiction-F1776221......................................14

V. Statement of the Case and Jurisdiction-F1776222......................................16

VI. Statement Regarding Oral Argument............................................................18

VII. Questions Presented.....................................................................................19

VIII. Facts.............................................................................................................21

IX. Summary of the Arguments..........................................................................25

X. Argument......................................................................................................27

1. Issue One: The trial court violated Appellant's right to due process by incorrectly defining the reasonable doubt standard during jury selection and simultaneously commenting on the weight of the evidence..................................................................................27

i. Introduction...........................................................................................27

ii. Standard of Review................................................................................28

iii. Authority and Argument........................................................................28

iv. Conclusion.............................................................................................46

2. Issue Two: Alternatively to Issue One, trial counsel was ineffective and harmed Appellant by failing to object to the trial court's incorrect definition of the reasonable doubt standard......................47

i. Standard of Review................................................................................47

i. Counsel's failure was ineffective under the Strickland test....................48

ii. Conclusion.............................................................................................52

3. Issue Three: The trial court abused its discretion and harmed Appellant by allowing allegations of an extraneous offense to be heard by the jury...........................................................................................53

i. Standard of Review................................................................................53

ii. Authorities and Argument.....................................................................53

iii. Conclusion.............................................................................................64

4. Issue Four: Alternatively, if this Court finds the error advanced by Issue Three was not properly preserved, Appellant argues Trial Counsel was ineffective in failing to properly preserve the objection and this deficient performance harmed Appellant........................65

i. Standard of Review................................................................................65

ii. Relevant Authorities and Argument......................................................65

iii. Prejudice................................................................................................68

iv. Conclusion.............................................................................................70

5. Issue Five: Texas law limits the imposition of costs of court upon Appellant to only the highest offense category of conviction....................70

i. Standard of Review................................................................................70

ii. In a single plea or trial involving multiple offenses, costs of court may be assessed only once............................................................70

iii. Appellant's cases were all presented in a single criminal action.....................................................................................................72

iv. Appellant was unlawfully charged duplicative costs of court in F1776222..................................................................................72

v. Conclusion.............................................................................................74

6. Issue Six: Texas law prohibits the imposition of a time-payment fee when the conviction is not yet final..............................................75

i. Standard of Review................................................................................75

ii. The Imposition of a Time-Payment Fee is Untimely.............................75

iii. Relevant Section of the Statute..............................................................75

iv. Conclusion.............................................................................................77

XI. Conclusion and Prayer..................................................................................78

XII. Certificate of Service.....................................................................................79

XIII. Certificate of Compliance with Tex. Rule App. Proc. 9.4.............................80

III. Index of Authorities

Cases

Abram v. State, 35 S.W. 389 (1896).........................................................................34

Arizona v. Fulminante, 499 U.S. 279 (1991)............................................................29

Brady v. United States, 397 U.S. 742 (1970)............................................................33

Brown v. State, 122 S.W. 794 (Tex. Crim. App. 2003)..........................39, 40, 41, 42

Brown v. State, 482 S.W.3d 157 (Tex. App.-Texarkana 2015, no pet.)...........49, 50

Burke v. State, 371 S.W.3d 252 (Tex. App.-Houston [1st Dist. 2011, pet. ref d.)......................................................................59

Bush v. State, 773 S.W.2d 297 (Tex. Crim. App. 1989).....................................59, 60

Cain v. State, 525 S.W.3d 728 (Tex. App.-Houston [14th Dist.] 2017, no. pet.)................................................72

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)..........................................28

Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007).........................................66

Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013).........................................70

Clark v. State, 693 S.W.2d 35 (Tex. App.-Houston [1st Dist.] 1985, no pet.).................................58

Coffin v. United States, 156 U.S. 432 (1895) ............................................................ 32

De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009). . ................... 54, 67, 68

Drone v. State, 906 S.W.2d 608 (Tex. App.-Austin 1995, pet. ref'd) ................... 59

Dryer v. State, __ S.W.3d __, No. 01-22-00201-CR, 2023 Tex.App. LEXIS 3831 (Tex. App.-Houston [1st Dist.] 2023, no pet h.) ............ passim

Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. March 31, 2021) ........................ 75

Ex parte Felton, 815 S.W.2d 733 (Tex. Crim. App. 1991 .......................................... 47

Ex parte Martin, 747 S.W.2d 789 (Tex. Crim. App. 1988) ...................................... 33

Ex parte Pharr, 897 S.W.2d 795 (Tex. Crim. App. Apr. 5, 1995) ............................ 71

Farris v. State, 643 S.W.2d 694 (Tex. Crim. App. 1982) ........................................ 59

Frangias v. State, 450 S.W.3d 125 (Tex. Crim. App. 2013) ..................................... 68

Franklin v. Franklin, 471 U.S. 307 (1985) ............................................................... 39

Freeman v. State, 525 S.W.3d 755 (Tex. App.-Austin 2017, pet. ref'd) ................ 28

Garcia v. State, 893 S.W.2d 17 (Tex. App.-Corpus Christi 1994, pet. ref'd) .......................................... 53

Gardner v. State, 733 S.W.2d 195 (Tex. Crim. App. 1987) ...................................... 36

Garrison v. State, 528 S.W.2d 837 (Tex. Crim. App. 1975) ..................................... 60

Gutierrez v. State, 108 S.W.3d 304 (Tex. Crim. App. 2003) ................................... 49

Harrell v. State, 884 S.W.2d 154 (Tex. Crim. App. 1994) ...................................... 53

Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005) ................................. 53

Hill v. State, No. 05-07-00727-CR, 2008 Tex.App. LEXIS 3600 (Tex. App.-Dallas May 19, 2008, no pet.) ........................33

Huff v. State, No. 07-10-00174-CR, 2010 Tex.App. LEXIS 9424 (Tex. App.-Amarillo Nov. 29, 2010, no pet.) ...........................................32

Hurlburt v. State, 506 S.W.3d 199 (Tex. App.-Waco 2016, no pet.) .............. 71, 72

In re Winship, 397 U.S. 358 (1970) .......................................................................... 32

Jackson v. State, 766 S.W.2d 504 (Tex. Crim. App. 1985) ...................................... 47

Jackson v. State, 766 S.W.2d 518 (Tex. Crim. App. 1988) ...................................... 47

Jasper v. State, 61 S.W.3d 413 (Tex. Crim. App. 2001) .......................................... 29

Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. Feb. 26, 2014) ........................ 70

Lagrone v. State, 209 S.W. 411 (Tex. Crim. App. 1919) .......................................... 38

LaPorte v. State, 840 S.W.2d 412 (Tex. Crim. App. 1992) ..................................... 71

Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) ........................................... 49

Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) ................................... 28, 30

Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991) ........................................... 53

Megan Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) ........................... 42

Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) ........................... 31, 32, 33

Merrit v. State, 529 S.W.3d 549 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd) ................................... 53

Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996) ...................................... 53

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). . ...................................... 53

Ovalle v. State, 592 S.W.3d 615 (Tex. App.-Dallas 2020, no pet.) ....................... 75

Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ................................. 34, 35

Powell v. State, 252 S.W.3d 742 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ......................................... 29

Proenza v. State, 541 S.W.3d 786 (Tex. Crim. App. 2017) ............................... passim

Robertson v. State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006) ........................... 67

Russell v. State, 749 S.W.2d 77 (Tex. Crim. App. 1988) ......................................... 38

Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) ....................................... 30

Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997) ............................ 54

Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997) .................................... 59

Seay v. State, 395 S.W.2d 40 (Tex. Crim. App. 1965) ............................................. 60

Shuler v. State, 650 S.W.3d 683 (Tex. App.-Dallas 2022, no pet) ....................... 75

Strickland v. Washington, 466 U.S. 668 (1984) ....................................................... 48

Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993) ................................................. 28

Sullivan v. Louisiana, 508 US. 275 (1993) ............................................................... 29

Thompson v. Lynaugh, 821 F.2d 1054 (5th Cir. 1987) .............................................. 35

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .......................... 47, 48, 49

Tuazon v. State, 661 S.W.3d 178 (Tex. App.-Dallas 2023, no pet.) ............... passim

United States v. Cronic, 466 U.S. 648 (1984) .......................................................... 47

United States v. Lane, 474 U.S. 438, 449 (1986) ..................................................... 45

Victor v. Nebraska, 511 U.S. 1 (1994) ....................................................................... 33

Warren v. State, Nos. 12-20-00156-CR, 12-20-00159-CR, 2021 Tex.App. LEXIS 269 (Tex. App.-Tyler 2021, no pet. h.) (mem. op., not designated for publication) ................................. 76

Webb v. State, 36 S.W.3d 164 (Tex. App., Houston [14th Dist.] 2000, pet. ref'd) ................................................................ 45

Williams v. State, 194 S.W.3d 568 (Tex. App.--Houston [14th Dist.] 2006)...............................................................................29

Williams v. State, 495 S.W.3d 583 (Tex. App.-Houston [1st Dist.] 2016).........................................................................72

Young v. State, 648 S.W.2d 2 (Tex. Crim. App. 1983)............................................42

Statutes

Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess. Law Serv. Ch. 1352..............................................................75

Acts 2015, 84th Leg., ch. 1160 (S.B. 740) §2..........................................................71

Tex. Code Crim. Proc. Ann. art. 38.37 (2021).............................................58, 61, 66

Tex. Code Crim. Proc. Art 102.073 (2021)............................................................71

Tex. Code Crim. Proc. art. 1.15 (2021)...................................................................33

Tex. Code Crim. Proc. art. 2.03 (2021)......................................................32, 45, 48

Tex. Code Crim. Proc. art. 26.13 (2021).................................................................33

Tex. Code Crim. Proc. art. 27.13 (2021).................................................................33

Tex. Code Crim. Proc. art. 38.03 (2021)..........................................................32, 45

Tex. Local Gov't Code § 133.103 (2019)................................................................76

Tex. Penal Code §22.04 (2021)..............................................................................61

Tex. Penal Code Ann. § 2.01 (2021)................................................................32, 45

Texas Penal Code §21.02 (2009)......................................................................14, 16

Other Authorities

John P. Cronan, Is Any of This Making Sense? Reflecting on Guilty Pleas to Aid Criminal Juror Comprehension, 39 Am. Crim. L. Rev. 1187, 1188 (2002)................................................................32

Rules

Tex. R. App. P. 44.2 (2022)...................................................................................45

Tex. R. App. Proc. 33.1 (2022)...............................................................................28

Tex. R. Evid. 103(e)...............................................................................................28

Tex. R. Evid. 403 (2021)........................................................................................62

Tex. R. Evid. 404 (2021)........................................................................................58

Tex. R. Evid. 405 (2021)........................................................................................58

Tex. Rule App. Proc. 25.2 (2022).....................................................................15, 17

Tex. Rule App. Proc. 26.2 (2022).....................................................................15, 17

Tex. Rule App. Proc. 39 (2022)..............................................................................18

Tex. Rule App. Proc. 9.4 (2022)............................................................................80

Tex. Rule App. Proc. 9.5 (2022).............................................................................79

Constitutional Provisions

Tex. Const. art. I §10.............................................................................................32

Tex. Const. art. I §19..............................................................................................32

U.S. Const. amend. V.............................................................................................32

U.S. Const. amend. XIV.........................................................................................32

To the Honorable Justices of the Court of Appeals:

In support of his appeal, Appellant Hector Anguiano submits this Brief:

IV. Statement of the Case and Jurisdiction-F1776221

Case Number 05-22-00680-CR is an appeal of the sentence imposed by the Judgment of Conviction in Criminal District Court Number Six of Dallas County, Texas. (CR113).¹ In an indictment filed October 30, 2017, the State alleged that Appellant committed the offense of continuous sexual abuse of a child under Texas Penal Code §21.02 (2009) as follows: on or about the 1st day of March, 2010 in the County of Dallas, State of Texas, did then and there intentionally and knowingly, during a period that was 30 or more days in duration, when the defendant was 17 years of age or older, commit two or more acts of sexual abuse against MC,² a child younger than 14 years of age, hereinafter called complainant, namely by contact between the mouth of the complainant and the sexual organ of the defendant. (CR15). Appellant pleaded "not guilty," and a trial was had before a jury. (3RR44- 45).

1 The Record on Appeal consists of the Clerk's Record, which is one volume and two supplemental volumes for each case and the Reporter's Record, which is six volumes. The Clerk's Record is cited as "CR" or "CRSupp," preceded by the last three digits of the appellate case number and/or volume number, if necessary, and followed by the page number. The Reporter's Record is cited as "RR" preceded by the volume number and followed by the page number. Exhibits are cited as either SX, for State's Exhibits, or DX, for Defense Exhibits and are followed by the exhibit number. All exhibits are found within volume six of the Reporter's Record.

2 In accord with Tex. R. App. Proc. 9.8, the names of minors involved in this case have been reduced to initials.

On June 8, 2022, Appellant was convicted of the lesser-included offense of Aggravated Sexual Assault/Child under 14. (CR113). On the same day, Appellant was sentenced to 15 years in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") a zero dollar fine, and court costs of $401.00. (CR119, 138-39).

On July 5, 2022, Appellant filed a timely notice of appeal from the Judgment of Conviction. (CR120); See Tex. Rule App. Proc. 26.2(a) (2022). The trial court signed a certification of Appellant's right to an appeal, certifying that this is not a plea-bargain case, and that Appellant has the right of appeal. (1SuppCR7); See Tex. Rule App. Proc. 25.2(a)(2) (2022). As a result, this Court has jurisdiction over this appeal.

V. Statement of the Case and Jurisdiction-F1776222

Case Number 05-22-00686-CR is an appeal of the sentence imposed by the Judgment of Conviction imposed by Criminal District Court Number Six of Dallas County, Texas. (CR42). In an indictment filed October 30, 2017, the State alleged that Appellant committed the offense of continuous sexual assault of a child under 14 under Texas Penal Code §21.02 (2009) as follows: on or about the 1st day of October, 2009 in the County of Dallas, State of Texas, did then and there intentionally and knowingly, during a period that was 30 or more days in duration, when the defendant was 17 years of age or older, commit two or more acts of sexual abuse against JC, a child younger than 14 years of age, hereinafter called complainant, namely by contact between the mouth of the complainant and the sexual organ of the defendant. (CR15).

Appellant pleaded "not guilty," and a trial was had before a jury. (3RR45- 46). On June 8, 2022, Appellant was convicted of Aggravated Sexual Assault/Child under 14. (CR42). On the same day, Appellant was sentenced to 15 years in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") a zero dollar fine, and court costs of $401.00. (CR55, 80-81). On July 5, 2022, Appellant filed a timely notice of appeal from the Judgment of Conviction. (CR120); See Tex. Rule App. Proc. 26.2(a) (2022). The trial court signed a certification of Appellant's right to an appeal, certifying that this is not a plea-bargain case, and that Appellant has the right of appeal. (1SuppCR7); See Tex. Rule App. Proc. 25.2(a)(2) (2022). As a result, this Court has jurisdiction over this appeal.

VI. Statement Regarding Oral Argument

Appellant does not request oral argument. See Tex. Rule App. Proc. 39 (2022).

VII. Questions Presented

Issue One: Whether the trial court violated Appellant's right to due process by incorrectly defining the reasonable doubt standard and simultaneously commenting on the weight of the evidence during jury selection?

Issue Two: Whether, alternatively to Issue One, trial counsel's failure to object to the trial court's erroneous definition of reasonable doubt constitutes ineffective assistance of counsel?

Issue Three: Whether the trial court abused its discretion in allowing allegations of an extraneous offense to be heard by the jury?

Issue Four: Whether, alternative to Issue Three, trial counsel's failure to fully and/or properly object to the trial court's admission of otherwise inadmissible extraneous offense evidence constituted ineffective assistance of counsel?

Issue Five: Whether Texas law limits the imposition of costs of court upon Appellant to only the highest offense category of conviction?

Issue Five: Whether Texas law prohibits the imposition of a time-payment fee when the conviction is not yet final?

VIII. Facts

Addressing the panel during jury selection, the trial judge stated: "I don't have a definition for beyond a reasonable doubt, but I submit to you that once you hear all the evidence if there's no other logical conclusion, other than the Defendant is the person that committed the crime, then I think reasonable doubt has probably been met." (2RR13). There was no objection by either side. (2RR13).

The prosecutor, during voir dire, did not discuss the burden of proof at all, other than to say the burden applies only to the elements of the offense, not other facts. (2RR37). Defense counsel's voir dire only just touched on the different burdens, referring briefly to preponderance of the evidence as tipping a scale in one direction and that proof beyond a reasonable doubt was higher. (2RR89-90). Defense counsel did not specifically define "reasonable doubt." (See 2RR69-96). Nor did the trial court, in its charge to the jury, define reasonable doubt or clarify its earlier misstatement in voir dire. (680CR100; 686CR50). The jurors received a charge with Texas's standard, definition-less reasonable doubt instruction instead. (690CR100; 686CR50).

During the direct examination of Appellant's wife (Emily Anguiano) in the defense case in chief, trial counsel asked Emily if she understood why they were there (yes), and what Appellant was charged with (yes), and then asked "[i]n the time that you've known Hector have you ever known him to do anything like that? Emily answered no. (3RR137-38). When trial counsel passed the case to the State, the ADA requested a bench conference, and the jury was ultimately taken out of the courtroom. (3RR144). The following discussion ensued:

MS. MITCHELL: Thank you, Judge. Your Honor, on direct examination of the witness I believe the question was asked "in the time you've known him has he ever done anything like this".

THE COURT: I recall.

MS. MITCHELL: The answer was no. I believe that opens the door to the Defendant's criminal history. He does have a prior injury to a child that was dismissed, but he was arrested and charged with that. The complainant in that case is Matthew Munoz and so I would like to -- before the Jury came in I wanted to approach because the State does intend to ask this witness if she is aware of that case.

. . .

THE COURT: You may ask that question. I do believe the door was opened. She said he never did anything like that and then a little bit later she said he would never do anything like that. So, if you have any evidence of any abuse of a child the door has been opened for that evidence to be admitted.

Now, I'm not going to let you admit a charge that was never pursued, but I will let you ask if she is aware of that charge and incident.

MS. MITCHELL: And just to be clear for the Court the case had been dismissed. It happened in 1991 so we cannot pull up the reason for the dismissal, whether it was dismissed as a conditional dismissal or -- but we do want to ask about the arrest and the charge that was filed.

THE COURT: And the charge again was?

MS. MITCHELL: Injury to a child.

(4RR144-46). Defense counsel objected to the prejudicial nature of the questioning and admission of a dismissed case, about which no information was known. (4RR146). The trial court overruled the objection and instructed the State: "I will let you ask if she is aware of an allegation, if she is aware that there was an arrest and that's as far as you can go." (4RR149). Trial counsel reiterated his objection. (4RR149). The State then proceeded with cross examination, and on the subject, questioned Emily about her testimony on direct that she had never known her husband to do anything like this [current charge for which the trial was ongoing]. (4RR150-51). The State then asked Emily if she was aware that Appellant was arrested for injury to a child in 1991. (4RR150-51). Emily stated she was. (4RR150-51). The State then alleged that Emily had been untruthful in her testimony, though that had not been the question asked on direct. (4RR150-51). Later, but still during cross-examination of Emily, the State pointed out that she loved her husband, had been with him for 43 years, would never want anything bad to happen to him, and she would try to help him if he were in trouble. (4RR153- 54). The State then argued in its closing:

[MC and JC] fooled us, they fooled the police, they fooled the forensic interviewer, they fooled their SRO, they fooled their counselors. It's not fooling anyone. . . We didn't know how [MC and JC] were going to testify. I think they did wonderfully, but I'll tell you what they didn't do is they didn't lie . . . .

(4RR162-63) (emphasis added).

And when his wife got up there and testified and she forgot about a monumental kind of -- I'm married to him for forty-three years but in 1991 I completely forgot that there was that injury to a child allegation, right. We'll smooth right over that.

People are going to get up here and they're going to say some things that aren't true. And I think the people that got up here and said some things that aren't true are [Appellant's] wife and his daughter and I completely understand that. I'm not mad at them. It's human nature. The question is not do you believe them. The question is why would you?

(4RR164-65).

Costs of court were assessed in each case. (680CR138; 868CR80). Each cost of court assessed in Cause F1776221 was identically assessed in F1776222. (680CR138; 686CR80) Further, though the cases were on appeal, the court clerk assessed a time-payment fee.

IX. Summary of the Arguments

Appellant presents five arguments in this appeal:

First, that the trial court violated Appellant's right to due process by incorrectly defining the reasonable doubt standard during jury selection and simultaneously commenting on the weight of the evidence;

Second, and alternatively to Issue One, that trial counsel's failure to object to the trial court's erroneous definition of reasonable doubt and comment on weight of the evidence constitutes ineffective assistance of counsel;

Third, that the trial court abused its discretion and harmed Appellant by allowing allegations of an extraneous offense to be heard by the jury;

Fourth, alternatively to Issue Three, that trial counsel's failure to fully and/or properly object to the trial court's admission of otherwise inadmissible extraneous offense evidence constitutes ineffective assistance of counsel;

Fifth, that the costs of court imposed against Appellant are legally limited to only one set for the single highest category offense, as opposed to cost assessment for each case; and

Fifth, that Texas law prohibits the imposition of a time-payment fee when the conviction is not yet final.

Appellant requests the following relief:

As to Issues One through Four, Appellant will ask this Court to vacate the conviction and sentence and remand this case to the trial court for a new trial on guilt/innocence.

As to the Fifth Issue, Appellant will ask this Court to reform the judgment, to reflect only one set of costs equal to the single highest category of offense on conviction.

As to the Sixth Issue, Appellant will ask this Court to reform the Judgment, eliminating the assessed Time Payment Fee.

X. Argument

1. Issue One: The trial court violated Appellant's right to due process by incorrectly defining the reasonable doubt standard during jury selection and simultaneously commenting on the weight of the evidence.

i. Introduction

Addressing the panel prior during jury selection, the trial judge stated: "I don't have a definition for beyond a reasonable doubt, but I submit to you that once you hear all the evidence if there's no other logical conclusion, other than the Defendant is the person that committed the crime, then I think reasonable doubt has probably been met." (2RR13). There was no objection by either side. (2RR13).

The fundamental, bedrock requirements of our criminal justice system are that every defendant is presumed innocent, is entitled to a fair trial, and shall not be convicted of a crime unless the State proves each element of the offense beyond all reasonable doubt. In this case, the trial court violated Appellant's rights by telling the jury that they could convict on less evidence than the Constitution requires and by commenting on the weight of the evidence, which served to lessen the State's burden to prove all elements of the offense. While neither the improper definition nor the improper comment ever objected to or corrected at any point in the trial, no objection is required to preserve error where the rights violated are fundamental, systematic, category two Marin rights. Further, harm must be presumed.

ii. Standard of Review

The trial court's incorrect definition of reasonable doubt is a structural failure and is not subject to a harm analysis because it violates a "basic protection[n] whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function." Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993); Tuazon v. State, 661 S.W.3d 178, 191-94 (Tex. App.-Dallas 2023, no pet.); Freeman v. State, 525 S.W.3d 755, 758 (Tex. App.-Austin 2017, pet. ref'd).

iii. Authority and Argument

Generally, to preserve error, a defendant must make a timely and specific objection. Tex. R. App. Proc. 33.1 (2022). Almost every right, constitutional and statutory, may be waived by the failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Tuazon, 661 S.W.3d 187. If no objection is made, a defendant waives error unless the error is "so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system." Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); see Tex. R. Evid. 103(e); see also Tuazon, 661 S.W.3d at 187, 191.

The United States Supreme Court has determined that fundamental error occurs when certain constitutional rights are violated causing "structural defects in the constitution of the trial mechanism." Powell v. State, 252 S.W.3d 742, 744-45 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)); also citing Williams v. State, 194 S.W.3d 568, 579 (Tex. App.--Houston [14th Dist.] 2006), aff'd, 252 S.W.3d 353 (Tex. Crim. App. Jan. 16, 2008). These fundamental constitutional rights include the right to counsel, the right to an impartial judge, the right to not have members of the defendant's race unlawfully excluded from a grand jury, the right to self-representation at trial, the right to a public trial - and the right not to have reasonable doubt defined incorrectly. Sullivan, 508 US. at 277-82; Fulminante at 309-10; Williams, 194 S.W.3d at 579. Additionally, the Texas Court of Criminal Appeals has held that a trial judge commits non-waivable, fundamental error when the judge comments on the weight of the evidence, or when the judge's comments taint the presumption of innocence. Proenza v. State, 541 S.W.3d 786, 797-801 (Tex. Crim. App. 2017); Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.); see also Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (per Blue, statements of a trial court that rise to "such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury" would be fundamental error).

Texas courts use the test set out in Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), to determine whether error is waivable or fundamental and non-waivable. Marin identified three types of rules: "(1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request." Proenza, 541 S.W.3d at 792 (quoting Marin, 851 S.W.2d at 279-80). The first category exists independent of the litigants' wishes and cannot be waived. Id. at 792. The second category consists of rights that are considered "'so fundamental to the proper functioning'" of the judicial process that they cannot be abandoned on appeal unless the record clearly shows the right was "'plainly, freely, and intelligently' waived." Id. (quoting Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). Only the third category can be procedurally waived by a failure to object. Id. The "fundamental errors" described in Texas Rule of Evidence 103(e), Federal, and older Texas cases are simply category-one and -two errors under Marin. Id. at 795.

A Marin inquiry places special emphasis on the question of whether it was the judge's or litigant's respective "dut[y]" to preserve the right. Id. at 797. While a litigant has a duty to assert forfeitable rights - such as by objecting to partisan hearsay - a judge has an independent duty to implement "waiver-only" rights and absolute systematic requirements. Id. For example, as previously mentioned a judge has an independent duty not to comment on the weight of the evidence, and not to impugn the presumption of innocence. Id. at 797-801; Blue, 41 S.W.3d at 132.

Of special note, a statute that imposes a mandatory, sua sponte responsibility or restriction on a judge creates a category-one or -two non-waivable right. Proenza, 541 S.W.3d at 797 (citing Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) and holding that Article 38.05 of the Texas Code of Criminal Procedure creates a non-waivable right not to have the court comment on the weight of the evidence).

The rights to be presumed innocent, to a fair trial, and to be convicted only on proof beyond a reasonable doubt are fundamental, category-two Marin rights that must be affirmatively waived.

The cornerstone of our criminal justice system is that a defendant is presumed innocent unless each and every element of the alleged crime is proved beyond a reasonable doubt. See Coffin v. United States, 156 U.S. 432; 460-61 (1895); In re Winship, 397 U.S. 358, 363-64 (1970); Tuazon, 661 S.W.3d at 186. In a contested jury trial, the United States and Texas Constitutions, as well as two separate Texas statutes, require that a defendant be presumed innocent, given a fair trial, and proved guilty beyond a reasonable doubt. U.S. Const. amend. V, VI, XIV § 2; Winship, 397 U.S. at 363-64; Tex. Const. art. I, §§ 10§19; Tex. Penal Code Ann. § 2.01 (2021); Tex. Code Crim. Proc. art. 38.03 (2021),³ see also Tuazon, 661 S.W.3d at 186.

3 These statutes are identically worded: "[a]ll persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt."

In addition, trial courts also have an affirmative, mandatory, statutory duty to ensure a fair trial for the defendant and not to impair the presumption of innocence. Tex. Code Crim. Proc. art. 2.03(b) (2021).

This beyond-a-reasonable-doubt standard is an "absolute systemic requirement." See Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004); Blue, 41 S.W.3d at 132; Huff, 2010 Tex.App. LEXIS 9424 at *6-7. Because this right is so important, trial courts are required by the Due Process clause to "avoid defining reasonable doubt so as to not lead the jury to convict on a lesser showing than due process requires." Victor v. Nebraska, 511 U.S. 1, 22 (1994).

The right to be proved guilty beyond a reasonable doubt can be waived, but due to the importance of the right that waiver is "surrounded by procedural protections both constitutional and statutory." Mendez, 138 S.W.3d at 344. This is the reason that, in a plea-bargain setting, the state is not required to produce evidence sufficient to prove the defendant's culpability beyond a reasonable doubt. Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988); Hill v. State, No. 05-07-00727-CR, 2008 Tex.App. LEXIS 3600, at *2 (Tex. App.-Dallas May 19, 2008, no pet.). However, even in that setting, the defendant must appear in person, must be admonished by the trial court, must be competent and enter the plea freely and voluntarily, must voluntarily, knowingly, and intelligently waive their right to a jury trial in writing, and the state still must introduce "sufficient" evidence to support the conviction. Brady v. United States, 397 U.S. 742, 748 (1970); Mendez, 138 S.W.3d at 344; Tex. Code Crim. Proc. art. 1.15 (2021), art. 26.13(a)(1-5), (b), (c), (d), (h) (2021), art. 27.13 (2021).

This court recently held, in Tuazon v. State, that a defendant has an absolute, systematic right at trial to be presumed innocent and proved guilty beyond a reasonable doubt. Tuazon, 661 S.W.3d at 192. Should a defendant wish to waive this right, they must do so by waiving, in writing, their right to a jury trial, be admonished by the court, and must knowingly and voluntarily enter a plea of guilty. See id. Because these rights are fundamental and must be affirmatively and knowingly waived, they are category-two Marin rights, and error is preserved even if the defendant did not object to the trial court's erroneous definition of reasonable doubt, unless the record affirmatively shows waiver. Id.

The trial judge's erroneous definition of beyond a reasonable doubt violated Appellant's Constitutional Due Process and statutory rights to a fair trial, to be presumed innocent, and to be proved guilty beyond a reasonable doubt.

Texas does not define "reasonable doubt."

For over a hundred years, Texas courts declined to give a definition of "beyond a reasonable doubt." Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000). The Court reasoned that "since the term ha[s] a commonly accepted meaning, 'it is not proper for the court to discuss what reasonable doubt is. The jury is as competent to determine that as the court.'" Id. at 571 (quoting Abram v. State, 35 S.W. 389, 390 (1896)). After requiring an elaborate definition of "beyond a reasonable doubt" during a brief interlude from 1991 to 2000, the Court of Criminal Appeals recognized that attempting to define reasonable doubt served only to confuse jurors, and "that the better practice is to give no definition of reasonable doubt at all to the jury." Id. at 573, 575 (quoting Thompson v. Lynaugh, 821 F.2d 1054, 1061 (5th Cir. 1987)).

"Of greatest concern, scholarly studies and anecdotal evidence suggest that jurors conflate reasonable doubt with [lesser standards]. The horrifying implication is that American juries may be depriving defendants of their fundamental due process right to have their guilt proved beyond a reasonable doubt." Tuazon, 661 S.W.3d at 193 (quoting John P. Cronan, Is Any of This Making Sense? Reflecting on Guilty Pleas to Aid Criminal Juror Comprehension, 39 Am. Crim. L. Rev. 1187, 1188 (2002)). "[This] 'horrifying implication' is even worse [when], at the very outset of the trial, the trial judge not only conflated . . . two standards, but also told the members of the venire they could do so too." Tuazon, 661 S.W.3d at 193.

A trial court's inappropriate statements to the jury during voir dire can violate the defendant's Constitutional and statutory rights. Blue, 41 S.W.3d at 132. Although Blue is a plurality opinion, the Court of Criminal Appeals has noted that Blue has never been "overruled nor even cast into doubt" and has approvingly cited Blue ever since. See, e.g., Proenza, 541 S.W.3d at 793 ("[T]he Blue opinions [have] neither [been] expressly overruled nor even cast into doubt"). As stated, supra, this Court decided a similar issue in Tuazon, earlier this year. Tuazon, 661 S.W.3d 178. In that case, the trial court effectively lowered the standard of proof in a criminal case from "beyond a reasonable doubt" to "preponderance of the evidence." Id. at 193. This court found that providing that improper definition to the jury, which allowed them to return a finding of guilt on less evidence than the Constitution requires, were comments that "were reasonably calculated to benefit the State or prejudice the defendant's rights," and therefore constituted reversible error, with no harm analysis required. Id. at 194 (quoting Gardner v. State, 733 S.W.2d 195, 210 (Tex. Crim. App. 1987).

The trial court's erroneous definition of reasonable doubt during voir dire was a violation of Appellant's rights to a fair trial, presumption of innocence, and to be convicted beyond a reasonable doubt.

In this case, during voir dire, arguably the most important part of the case and a time that sets the stage for the remainder of the trial, the trial judge stated he did not have a definition for beyond a reasonable doubt, but then proceeded to define it for the jury erroneously, stating: "I don't have a definition for beyond a reasonable doubt, but I submit to you that once you hear all the evidence if there's no other logical conclusion, other than the Defendant is the person that committed the crime, then I think reasonable doubt has probably been met."

The trial court's definition of beyond a reasonable doubt is analogous with that of the trial court in Tuazon, at the similar, yet different level. The Tuazon definition provided for a finding of guilt at a preponderance of the evidence. Here, the definition given would seem to place guilt beyond a reasonable doubt at the level of clear and convincing evidence (a firm belief or conviction). The trial court said: "I don't have a definition" and then proceeded to give exactly that-an impermissible definition.

The prosecutor, during voir dire, did not discuss the burden of proof at all, other than to say the burden applies only to the elements of the offense, not other facts. (2RR37). And defense counsel's voir dire only just touched on the different burdens, referring briefly to preponderance of the evidence as tipping a scale in one direction and that proof beyond a reasonable doubt was higher. (2RR89-90). Defense counsel did not define "reasonable doubt." (See 2RR69-96). Nor did the trial court, in its charge to the jury, define reasonable doubt or clarify its earlier misstatement in voir dire. (680CR100; 686CR50). The jurors received a charge with Texas's standard, definition-less reasonable doubt instruction instead. (680CR100; 686CR50).

The result of this is that the jurors went to the jury room having been told by the trial court that someone committed the crimes alleged, and having reasonable doubt defined as "there's no other logical conclusion other than that the Defendant is [that] person." That the declaration that a crime had occurred and the definition of what was to be decided and how came from the trial court judge is of critical importance because "[j]urors are prone to seize with alacrity upon any conduct or language of the trial judge". Proenza, 541 S.W.3d at 799. (quoting Lagrone v. State, 209 S.W. 411, 415 (Tex. Crim. App. 1919)).

Because the only definition of reasonable doubt the jury heard was incorrect, because it came from the trial court, and because it was never corrected, Appellant's rights to a fair trial, to be presumed innocent, and to only be proved guilty beyond a reasonable doubt were infringed. Such cases defy harm analysis.

The trial court's erroneous definition of the standard of proof was also an improper comment on the weight of the evidence, and thus a violation of Appellant's right to due process and structural error.

When a judge suggests that certain facts relevant to the outcome of the case are true or untrue, that is a comment on the weight of the evidence. Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988). "In the Texas adversarial system, the judge is a neutral arbiter between the advocates; he is the instructor in the law to the jury, but he is not involved in the fray." Brown v. State, 122 S.W. 794, 797 (Tex. Crim. App. 2003).

"Article 36.14 is a reflection of [this State's] devotion to a strict division of duties." Id. The primary reason for the rule is that an instruction "by the trial judge to the jury on the weight of the evidence reduces the State's burden of proving guilt beyond a reasonable doubt to the jury's satisfaction." Id. In Texas, a trial judge must also refrain from making any remark calculated to convey to the jury his opinion of the case. Id. "As we have explained: 'jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved.'" Id. at 798. Examples of improper comments include statements on legal presumptions, such as:

The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.

Id. (quoting Franklin v. Franklin, 471 U.S. 307, 311-12 (1985)). In Brown, the Texas Court of Criminal Appeals cited Franklin as an example of comments on the "far end" of the scale and clearly violative of the defendant's due process rights. Brown, 122 S.W.3d at 799.

"Somewhere in the middle of the improper-judicial-comment scale" are instructions which act as a vehicle to determine sufficiency of the evidence." Id. "In any given case the jury could make any number of reasonable inferences. But when the trial court, the only source of law the jury has, picks out only one such inference and instructs the jury that that one, though rebuttable, is a presumption provided by law, the court gives the force of law to that one possible inference." Id. at 800. It is not that the jury cannot-themselves-make that inference. Id. The error lies in telling the jury they can make that inference. Id. (e.g. instructing a jury that intent to kill may be inferred by the defendant's use of a deadly weapon).

At the less-obvious end of the scale are comments which might obliquely or indirectly convey some opinion on the weight of the evidence by singling out that evidence and inviting the jury to pay particular attention to it. Id. The Court of Criminal Appeals reviewed this type of instruction in Brown, holding that the court's instruction "intent or knowledge may be inferred by acts done or words spoken" was an improper comment on the weight of the evidence at this "less obvious" or near end of the scale. Brown 122 S.W.3d at 801. The Court of Criminal Appeals disagreed with this Court on the propriety of this instruction, finding "while the instruction is certainly neutral and it does not pluck out any specific piece of evidence, it does focus the jury's attention on the type of evidence that may support a finding of criminal intent." Id.

The trial court left the jury panel with a firm impression that the court had already found a crime had in fact been committed, and the only question to be answered was with regard to identity of the perpetrator. ("I don't have a definition for beyond a reasonable doubt, but I submit to you that once you hear all the evidence if there's no other logical conclusion, other than the Defendant is the person that committed the crime, then I think reasonable doubt has probably been met." (emphasis added); 2RR13). The trial court's definition was both erroneous and a comment on the weight of the evidence, conveying to the jury the court's opinion of the facts of the case and lessening the State's burden of proof in not just one way, but two-what they needed to prove and by what measure.

In Young v. State, the trial court provided a definition which, similarly, placed the burden around clear and convincing evidence. There, the trial court told the jury:

If after a fair and impartial consideration of all of the evidence or lack of evidence you can honestly say that you do not have an abiding belief as to the defendant's guilt, then you have a reasonable doubt, and it is your duty to acquit. On the other hand, if after a fair and impartial consideration of all the evidence you can honestly say that you do have

an abiding belief as to a defendant's guilt, then you have no reasonable doubt and it is your duty to convict.

Young v. State, 648 S.W.2d 2, 3 (Tex. Crim. App. 1983). The Court of Criminal Appeals held that the trial court's definition unconstitutionally lowered the State's burden to the intermediate standard of clear and convincing evidence-despite the fact the exact definition of that standard does not use the term "abiding belief." Id. "Logical conclusion" is no different.

The Court of Criminal Appeals stated Megan Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013): "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them,' while '[s]peculation is mere theorizing or guessing about the possible meaning of facts and evidence presented.'" Winfrey, 393 S.W.3d at 771. Logical conclusion is one of those "middle of the scale" comments about inferences that the Court of Criminal Appeals discussed in Brown as structural error. See Brown, 122 S.W.3d at 799. As the Court stated, it's not that the jury is not allowed to make that inference. Id. Rather, it is that the trial court is not allowed to explicitly give them that permission via its instructions. Id. In telling the jury that reasonable doubt has been met "if there is no other logical conclusion, other than that the Defendant is the person who committed the crime," the trial court authorized a finding of guilt on an inference-not on a requirement of proof beyond a reasonable doubt.

Further, tucked into that statement is a suggestion that the trial court had already weighed the evidence and found that a crime had in fact been committed and all that was left to be decided was whether "the Defendant is the person who committed" it.

Jury note three is important here. The note provided, inter alia, that there were jurors leaning toward acquittal. (680CR106). By lessening the standard of proof and the elements to be proven, the trial court's comments benefitted the State and worked to the detriment of Appellant.

The entire statement violated Appellant's right to due process of law in that it both lowered the State's burden and that it contained an improper comment on the weight of the evidence.

Structural error defies harm analysis.

As this Court explained in Tuazon, where the trial court improperly defines the State's burden of proof, it gives permission to the venire to convict on less proof than constitutionally allowed. Tuazon, 661 S.W.3d at 194. These are comments that are "reasonably calculated to benefit the State or prejudice the defendant's rights" and are, therefore, structural error. Id. (internal citations omitted). As in Tuazon, the trial court judge in this case stated that guilt must be proved beyond a reasonable doubt and "in practical effect, the trial court also stated proof beyond a reasonable doubt was not required." Id. By effectively telling the panel that guilt could be inferred, "the trial court failed to convey that guilt must be proved beyond a reasonable doubt in the one and only instance in which reasonable doubt was defined." Id. The trial court compounded this error by a comment which allowed the jurors to perceive that the case had been prejudged and the trial court had determined material elements of the offense to be true, thus finding a crime had been committed. This part of the trial court's erroneous statement lessened the State's burden in a different, but no less structural manner.

Alternatively, if this Court finds the trial court's definition does not rise to the level of constitutional error and believes a harm analysis is proper, the statutory errors implicate a substantial right and there is grave doubt that they did not affect the outcome.

In criminal cases involving non-Constitutional error, the court of appeals generally must disregard error; however, if the court has "grave doubts" about whether an error did not affect the outcome, it must treat the error as if it did. See United States v. Lane, 474 U.S. 438, 449 (1986); Webb v. State, 36 S.W.3d 164 (Tex. App., Houston [14th Dist.] 2000, pet. ref'd); Tex. R. App. Proc. 44.2(a).

In this case, in addition to the constitutional harm discussed above Appellant had separate statutory rights to be proved guilty beyond a reasonable doubt and to a judge who would give him a fair trial without impairing the presumption of innocence. Tex. Penal Code Ann. § 2.01 (2021); Tex. Code Crim. Proc. art. 38.03 (2021); Tex. Code Crim. Proc. art. 2.03(b) (2021).

Jury note three is also important here. As stated, supra, the note provided that there were jurors leaning toward acquittal. (680CR106). Even a slight lessening of the amount of evidence required or of the elements to be proven should cause this Court to have grave doubts about whether the errors in this case affected the outcome. Here, the trial court's comments lessened both, and in a significant way. For these reasons, the court of appeals should have grave doubts whether the errors in this case affected the outcome.

iv. Conclusion.

"Jurors are prone to seize with alacrity upon any conduct or language of the trial judge." Proenza, 541 S.W.3d at 799 (quoting Lagrone, 209 S.W. at 415). Because the only definition of reasonable doubt the jury heard in this case was incorrect, came directly from the judge, and was never abandoned or corrected, Appellant's rights to a fair trial and to be convicted only upon proof beyond all reasonable doubt of all elements of the offense-without any lightening of the State's load-was infringed. This is structural error, which defies harm analysis, and requires reversal and remand for a new trial on the merits.

2. Issue Two: Alternatively to Issue One, trial counsel was ineffective and harmed Appellant by failing to object to the trial court's incorrect definition of the reasonable doubt standard.

i. Standard of Review

A single, egregious error of omission or commission by appellant's counsel may constitute ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Although courts are hesitant to designate any error "per se" ineffective as a matter of law, certain egregious errors that lead to a breakdown in the adversarial process may constitute ineffective assistance. Id.; see, e.g., Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985) (failure of trial counsel to advise appellant that judge should assess punishment amounted to ineffective assistance of counsel) (modified on other grounds on remand from U.S. Supreme Court, Jackson v. State, 766 S.W.2d 518 (Tex. Crim. App. 1988)); Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991) (failure to challenge a void prior conviction used to enhance punishment rendered counsel ineffective); see also United States v. Cronic, 466 U.S. 648, n. 20 (1984).

In this case, there is no conceivable trial strategy or tactic that would justify refusing to object to an obviously incorrect definition of reasonable doubt. Trial counsel's failure to object to the trial court's erroneous definition of reasonable doubt, thus condemning Appellant to be tried on what was an effectively a clear and convincing evidence standard, was both a violation of counsel's statutory duty to ensure that defendant had a fair trial and an error so egregious as to be ineffective as a matter of law. Tex. Code Crim. Proc. Art. 2.03(b) (2021).

i. Counsel's failure was ineffective under the Strickland test.

The Constitutions of both the United States and Texas guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. The right to counsel necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). There is a two-prong test to determine whether counsel is ineffective: first, appellant must demonstrate counsel's performance was deficient and not reasonably effective; second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 688-93. The appellant must first show defense counsel's performance was deficient by falling "below an objective standard of reasonableness." Id. at 687-88; Thompson, 9 S.W.3d at 812. Once the appellant has shown deficient performance, the appellant must show prejudice to the defense; in other words, "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S.at 694; Thompson, 9 S.W.3d at 812. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812.

The appellant has the burden to prove both prongs by a preponderance of the evidence. Id. at 813.

Determination whether a defendant received effective assistance is made "according to the facts of each case" by looking to "the totality of the representation and the particular circumstances of each case." Id. Review of defense counsel's representation is highly deferential and presumes counsel's performance "fell within a wide range of reasonable professional assistance." Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). To rebut this presumption the record must firmly support every allegation of ineffectiveness. See Thompson, 9 S.W.3d at 813.

An accused has the right "to be convicted by proof beyond all reasonable doubt." Gutierrez v. State, 108 S.W.3d 304, 306 (Tex. Crim. App. 2003) (en banc). A jury may not convict a defendant if it finds one reasonable doubt as to any element of the offense. Brown v. State, 482 S.W.3d 157, 161 (Tex. App.- Texarkana 2015, no pet.). The phrases "beyond a reasonable doubt" and "beyond all reasonable doubt" are alternative means of expressing the same standard of proof. Id. (internal citations omitted). In Brown, the Texarkana Court of Appeals found trial counsel's failure to object to the State's misstatement that it was not required to prove its case "beyond all reasonable doubt" but only "beyond a reasonable doubt" did not equate to deficient performance because the trial court had promptly caught the error and called both counsel to the bench. Id. at 161-62. Brown's trial counsel "could have determined that it was unnecessary to address the burden of proof during his voir dire following the trial court's sua sponte side bar because the trial court was going to instruct the jury on the proper standard of proof and/or because he did not want to further confuse the jury." Id. at 164.

That is not the case here, however. Here, not only did counsel fail to object to the unconstitutionally infirm definition given-not by the State-but by the trial court itself, but trial counsel made statements which served only to further confuse the jury and lower the standard even further. During a discussion with a potential juror about the standard of proof, trial counsel and that venire member had the following exchange:

. . . MR. SALAZAR: In civil law it's considered as preponderance of the evidence.

VENIREPERSON ROBINSON: More likely or not.

MR. SALAZAR: Would you say that's halfway, 20/20.

VENIREPERSON ROBINSON: I'd say it's about fifty-one percent. Just tip the scale.

MR. SALAZAR: Fifty plus one, right.

THE COURT: I'm not going to let you commit any juror to a specific definition of reasonable doubt.

MR. SALAZAR: Yes, sir. So, what we're saying is reasonable doubt is most definitely higher than a civil case?

VENIREPERSON ROBINSON: It is most definitely. Yes sir.

. . .

(2RR88). It is clear from the trial court's interjection into the exchange that the trial court was confused. If the trial court was confused, there can be no doubt that any lay member of the jury was even more so.

As noted above, there is no justification for failing to object to an incorrect definition of reasonable doubt. And there is no justification for further confusing the jury panel as to what level of proof was required to obtain a conviction, or as to what must be proven to that standard.

The confusion of the court, the panel, and ultimately the jury is a clear expression of the prejudice to defendant. Here, trial counsel failed to object to the trial court's lowering of the burden to the intermediate clear and convincing standard, and then trial counsel magnified the error by effectively lowering it further to "fifty, plus one," which is the civil, preponderance of the evidence standard. With no possible strategic reason for doing so, this is per se deficient behavior. The record shows both an improper definition by the trial court followed up with further confusion and misdefinition by trial counsel-which, on the record, left the trial court judge confused. Trial counsel's deficient performance resulted in a violation of Appellant's right to be convicted only upon proof beyond a reasonable doubt. This is prejudice.

ii. Conclusion.

There can be no strategic reason for failing to object to an improper definition of the standard of proof given by the trial court itself. Nor can there be strategic reason for sending that standard into a tailspin with trial counsel's own erroneous statements which followed the trial court's instruction. Trial counsel's performance was deficient and resulted in the jury being permitted to convict on less than the constitutionally required amount. This is prejudice. Appellant was denied his constitutional right to effective assistance of counsel.

3. Issue Three: The trial court abused its discretion and harmed Appellant by allowing allegations of an extraneous offense to be heard by the jury.

i. Standard of Review

The improper admission of extraneous-offense evidence is reviewed for non-constitutional error. See Tex. R. App. Proc. 44.2(b) (2022); Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). Under this standard, an error is harmless if the reviewing court is reasonably assured that the error did not influence the verdict or had only a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. Merrit v. State, 529 S.W.3d 549, 556 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd) (citing, inter alia, Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991)).

ii. Authorities and Argument

Before evidence of an extraneous offense is admissible, the trial court must make a relevance determination that the jury could find beyond a reasonable doubt that the defendant committed the extraneous offense. See Garcia v. State, 893 S.W.2d 17, 19 n.1 (Tex. App.-Corpus Christi 1994, pet. ref'd) (citing Harrell v. State, 884 S.W.2d 154 (Tex. Crim. App. 1994)); see also Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) ("When evidence of extraneous offenses has been offered, regardless of the respective phase of a trial, the law requires that it be proved beyond a reasonable doubt that the defendant committed the said extraneous offenses, or is at least criminally responsible for its commission.").

"If the opponent of extraneous offense evidence objects on the grounds that the evidence is not relevant, violates Rule 404(b), or constitutes an extraneous offense, the proponent must satisfy the trial court that the extraneous offense evidence has relevance apart from its character conformity value." Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997).

A trial court's ruling is generally within this zone if the evidence shows that the extraneous offense is relevant to a material, non-propensity issue, and the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

During the direct examination of Appellant's wife (Emily Anguiano) in the defense case in chief, trial counsel and Emily had the following exchange:

Q (By Mr. Salazar) Now, Emily you understand why we're here today; do you understand?

A Yes.

Q Okay. And you understand what Hector is being charged with?

A Yes.

Q Okay. In the time that you've known Hector have you ever known him to do anything like that?

A No.

(3RR137-38). When trial counsel passed the case to the State, the ADA requested a bench conference, and the jury was ultimately taken out of the courtroom. (3RR144). The following discussion ensued:

MS. MITCHELL: Thank you, Judge. Your Honor, on direct examination of the witness I believe the question was asked "in the time you've known him has he ever done anything like this".

THE COURT: I recall.

MS. MITCHELL: The answer was no. I believe that opens the door to the Defendant's criminal history. He does have a prior injury to a child that was dismissed, but he was arrested and charged with that. The complainant in that case is Matthew Munoz and so I would like to -- before the Jury came in I wanted to approach because the State does intend to ask this witness if she is aware of that case.

. . .

THE COURT: You may ask that question. I do believe the door was opened. She said he never did anything like that and then a little bit later she said he would never do anything like that. So, if you have any evidence of any abuse of a child the door has been opened for that evidence to be admitted.

Now, I'm not going to let you admit a charge that was never pursued, but I will let you ask if she is aware of that charge and incident.

MS. MITCHELL: And just to be clear for the Court the case had been dismissed. It happened in 1991 so we cannot pull up the reason for the dismissal, whether it was dismissed as a conditional dismissal or -- but we do want to ask about the arrest and the charge that was filed.

THE COURT: And the charge again was?

MS. MITCHELL: Injury to a child.

(4RR144-46). Defense counsel objected to the prejudicial nature of the questioning:

MR. MERREN: Judge, we object to that because the case was dismissed and one of the reasons it could have been dismissed was lack of probable cause, Judge. We don't know that because the prosecutor said she hasn't been able to find the underlying reason for that, Judge. But I think this is prejudicial, of course, to this Jury, even if it's just she's aware of that charge.

THE COURT: Absolutely. It's absolutely prejudicial.

MR. MERREN: That's correct. And we know that the case has been dismissed, Judge.

THE COURT: We don't know why the case has been dismissed. All she's going to do is ask if she is aware of an incident that occurred with somebody back in or around 1990-91.

(4RR146). The trial court instructed the State: "I will let you ask if she is aware of an allegation, if she is aware that there was an arrest and that's as far as you can go." (4RR149). Trial counsel reiterated his objection. (4RR149). The State then proceeded with cross examination, and on the subject, questioned:

Q Before we start talking about [JC and MC], there was some testimony you gave on direct examination in regards to your husband. And specifically you said that in the time you've known him he's never done anything like this; is that correct?

A Right.

Q Okay. Are you aware of the fact that in 1991 he was arrested for injury to a child?

A Yes.

Q Okay. Are you aware of who the complainant was in that case?

A Who was the complainant?

Q Who the alleged victim in the case is?

A She was my niece.

Q Okay. So when you testified earlier that wasn't a hundred percent accurate, was it?

A Well, it's been a long time so I mean I didn't know.

Q It was during your marriage though, correct?

A Yes.

(4RR150-51). Later, the State and Emily had this exchange:

Q Now, of course, you love your husband, correct?

A Correct.

Q Have been together for how many years?

A Forty-three years.

Q Forty-three years. You would never want anything bad to happen to him, correct?

A Well, no.

Q Certainly would do anything to help him if he was ever in trouble; is that right?

A In what way?

Q In any way?

A Well, yeah. I mean, I would help him.

(4RR153-54). The State then argued in its closing:

And when his wife got up there and testified and she forgot about a monumental kind of -- I'm married to him for forty-three years but in 1991 I completely forgot that there was that injury to a child allegation, right. We'll smooth right over that.

People are going to get up here and they're going to say some things that aren't true. And I think the people that got up here and said some things that aren't true are [Appellant's] wife and his daughter and I completely understand that. I'm not mad at them. It's human nature. The question is not do you believe them. The question is why would you?

(4RR164-65).

"Evidence of an extraneous or collateral offense is generally inadmissible because the accused is constitutionally entitled to be tried only on the accusation made in the charging instrument." Clark v. State, 693 S.W.2d 35, 37 (Tex. App.- Houston [1st Dist.] 1985, no pet.); see also Tex. R. Evid. 404 (2021). Such evidence however may be admissible if allowed under certain statutes such as Tex. Code Crim. Proc. Ann. art. 38.37 (2021) or under Tex. Rule of Evid. 405(a):

When evidence of a person's character is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, inquiry may be made into relevant specific instances of the person's conduct.

See Tex. R. Evid. 405 (2021); Tex. Code Crim. Proc. Ann. art. 38.37; Dryer v. State, __ S.W.3d __, No. 01-22-00201-CR, 2023 Tex.App. LEXIS 3831 (Tex. App.- Houston [1st Dist.] 2023, no pet h.) (under art. 38.37, "evidence of certain enumerated separate offenses [may be] admissible in prosecutions of sex-related crimes committed against children"); Burke v. State, 371 S.W.3d 252, 256 (Tex. App.-Houston [1st Dist. 2011, pet. ref'd.) (holding that in applicable cases, art. 38.37 supersedes Tex. R. Evid. 404).

Under Rule 405, if a witness testifies to a defendant's good character, the State may be allowed to inquire about the witness's awareness of specific instances of conduct in its cross-examination. Drone v. State, 906 S.W.2d 608, 616 (Tex. App.-Austin 1995, pet. ref'd). This is often referred to as "opening the door."

Evidence which is otherwise inadmissible may be admitted if the party against whom the evidence is offered "opens the door." But the party offering the evidence may not "stray beyond the scope of the invitation." Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997) (internal citations omitted). "Extraneous-offense evidence is admissible to rebut defensive theory . . . but the defense must have genuinely raised that theory before rebuttal may occur." Dryer, 2023 Tex.App. LEXIS at *33-34. "The wall, attacked at one point, may not be fortified at another and distinct point." Schutz, 957 S.W.2d at 71 (quoting Farris v. State, 643 S.W.2d 694, 697 (Tex. Crim. App. 1982)).

The "opening of the door" is also sometimes referred to as the "invited argument rule." See e.g. Bush v. State, 773 S.W.2d 297 (Tex. Crim. App. 1989). In that case, a material witness had invoked the Fifth Amendment, making her unavailable to both sides. Id. at 301. Despite knowing the State could not call the witness, the defense commented to the jury on the State's failure to call such an important witness. Id. The Court of Criminal Appeals found the defense argument opened the door for a limited response. Id. ("Although, the appellant's argument certainly entitled the prosecution to respond in kind, i.e., that it could not call Woolsey under the circumstances, beyond that the invitation did not extend."); see also Garrison v. State, 528 S.W.2d 837 (Tex. Crim. App. 1975); Seay v. State, 395 S.W.2d 40 (Tex. Crim. App. 1965). The State, however, strayed beyond the scope of the open door in Bush in two respects: (1) the State's argument went outside the record, and argued that the witness would have testified in a manner consistent with an actual witness, thereby bolstering that witness's testimony; (2), the argument left a false impression with the jury that the reason she was not called was because her testimony would simply be duplicative with the witness they did call. Bush, 773 S.W.2d at 301. The Court then affirmed the finding of harm made by the lower appellate court. See id.

In the case at bar, the trial court erred in finding that the defense opened the door. Trial counsel's three questions were very limited in scope and did not invite the State to respond as it did. The first question was: "Now, Emily you understand why we're here today; do you understand?" They were there for trial on two indictments alleging continuous sexual assault of a child. The second question made sure Emily understood what offense(s) Appellant was accused of committing: "Okay. And you understand what Hector is being charged with?" The third and final question cannot realistically be construed as relating to anything other than the sexually based offenses for which Appellant was on trial: "Okay. In the time that you've known Hector have you ever known him to do anything like that?" (Emphasis added). Emily's answers were: (1) yes; (2) yes; and (3) no. Injury to a child is not a sexually based offense and is not otherwise admissible under Art. 38.37. See Tex. Penal Code §22.04 (2021); Tex. Code Crim. Proc. Ann. art. 38.37. There was no reason for Emily to believe that the question posed by defense counsel would or could include reference to a dismissed allegation of injury to a child. Further, the question was "have you ever known him to do anything like that?" (Emphasis added). Unless Emily both understood the question to include the trial court's leap of understanding, and had personal knowledge that the once-charged, but later dismissed injury to a child allegation actually occurred, her only true answer could be exactly what it was-no.

The trial court erred by finding trial counsel opened the door through his questioning. The trial court further erred by allowing the State to introduce evidence of an extraneous offense about which absolutely no facts were known, meaning the trial court had nothing on which to make the threshold finding that the evidence was relevant-a necessary finding to Appellant's objection on the prejudicial effect of such an admission. Further, the trial court could not have found, as required by Tex. R. Evid. 403 (2021), that the extraneous offense was relevant to a material, non-propensity issue, and the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. The only purpose for admission of this office was to: (1) show propensity for injury to children; (2) to discredit Emily (and Monica by association); and (3) offer a vehicle by which to further bolster the testimony of MC and JC.

Further, since the trial court's ruling allowed the State to leave a false impression with the jury and to openly make Emily out to be a liar, though she swore to tell the truth, the whole truth, and nothing but the truth ("you certainly would do anything to help [Appellant] . . . ." (emphasis added), the infinitesimally small amount of probative value was vastly outweighed by the prejudicial effect. Compounding this effect, the State continued to hammer at Emily's credibility in closing arguments:

And when his wife got up there and testified and she forgot about a monumental kind of -- I'm married to him for forty-three years but in 1991 I completely forgot that there was that injury to a child allegation, right. We'll smooth right over that.

People are going to get up here and they're going to say some things that aren't true. And I think the people that got up here and said some

things that aren't true are [Appellant's] wife and his daughter and I completely understand that. I'm not mad at them. It's human nature. The question is not do you believe them. The question is why would you?

(4RR164-65).⁴

4 This statement was made in the State's open/close. Therefore, it was not in response to Appellant's closing argument.

Harm is Apparent.

This Court can only find harmless error if it is reasonably assured that the error did not influence the verdict or had only a slight effect. That is simply not possible. The admission of the dismissed charges violated Appellant's right to only be tried on the charged offense and allowed him to be convicted on the mere hint of propensity. Second, the State used the inadmissible evidence as proof that Emily and Appellant's daughter were liars and essentially told the jury in closing argument that they should wholly disregard their testimony and listen only the State's witness (who, by inference, were white knights, only seeking justice and telling the truth). Immediately before his offensive closing argument, the prosecutor improperly vouched for the complainants, stating:

[MC and JC] fooled us, they fooled the police, they fooled the forensic interviewer, they fooled their SRO, they fooled their counselors. It's not fooling anyone. . . We didn't know how [MC and JC] were going

to testify. I think they did wonderfully, but I'll tell you what they didn't do is they didn't lie . . . .⁵

(4RR162-63). The state finished their vouching and then immediately launched into the offensive part of closing at issue in this case found at 4RR164-65. This was virtually the entirety of the State's argument in open/close. (See RR 160-65).

5 Because trial counsel did not object to the improper jury argument, the vouching issue is not separately pursued on appeal.

There can be little doubt that the trial court's error had much more than a slight effect on the jury's verdict.

iii. Conclusion.

Appellant's questioning of Emily did not open the door to the State's question on the dismissed injury to a child case. Further, the trial court could not meet the threshold requirement of relevance under Rule 403 that a rational jury could find beyond all reasonable doubt that Appellant committed that dismissed offense-since absolutely no facts were known. The State then capitalized on the error, seizing the opportunity to attack Emily's credibility and that of Appellant's daughter, while repeatedly-and improperly-vouching for the complainants. Appellant was harmed, the conviction should be reversed, and this case should be remanded for a new trial on the merits.

4. Issue Four: Alternatively, if this Court finds the error advanced by Issue Three was not properly preserved, Appellant argues Trial Counsel was ineffective in failing to properly preserve the objection and this deficient performance harmed Appellant.

i. Standard of Review

The standard of review for ineffective assistance of counsel was laid out, supra, in Issue Two.

ii. Relevant Authorities and Argument

Much of the law relevant to this issue was discussed, supra, in Issue Three. For the sake of brevity (in an already long brief), it will not be repeated here. The First District Court of Appeals recently addressed a claim of ineffective assistance with regard to trial counsel's failure to properly object to an otherwise inadmissible extraneous offense offered in the guilt phase of trial. Dryer, 2023 Tex.App. LEXIS 3831 at *4. In that case, Dryer was on trial for indecency and sexual assault of a child. Id. at *2. The State called K.M. to testify that which she was 17, she had stayed the night at Dryer's house and Dryer had inappropriate sexual contact with her. Id. at *3-4. At this point, defense counsel reurged his/her pretrial objection, which was unclear, but seemed to lean toward an objection under Rule 401 or 403. Id. at *5. The trial court allowed the evidence to be admitted under art. 38.37. Id. The defense called six witnesses, each testified that Dryer was honest, law-abiding, and would never do anything like what he was charged with. Id. at *14-16. Dryer was found guilty and sentenced to 35 years in TDCJ. Id. at 21.

In reviewing the case on rehearing, the First District found defense counsel's failure to object both deficient and resulting in prejudice to Dryer. Dryer, 2023 Tex.App. LEXIS at *25-40. In finding defense counsel's performance deficient, the court held "that no competent lawyer would have failed to make this objection [where inadmissibility is clear] and no reasonable counsel could have decided that the defense would be better served by its admission than its exclusion." Id. at *26-27. Remarking that while they would "not lay down a rule of universal application, [they believe] it will be a rare situation in which failing to object to evidence which is categorically inadmissible . . . is not deficient performance. Id. at *27.

The court explained that extraneous offenses are ordinarily inadmissible during the guilt innocence, at least to show propensity. Id. at *27-28 (citing Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) (extraneous offense evidence is inadmissible when it has no relevance apart from character conformity); see also Tex. R. Evid. 405 (limiting manner in which a person's character may be proved in limited circumstances in which such evidence is allowed). Art. 38.37, however, draws on the nature of the offenses to provide-in certain cases-for admissibility of such evidence. See Art. 38.37.

In child sex cases, "a defense lawyer could not reasonably forego an objection that would bar the jury from hearing the damning testimony of a second accuser in cooperation of the charged offense. There is no reasonable trial strategy that would allow counsel to let a jury hear this highly prejudicial inadmissible evidence." Dryer, 2023 Tex.App. LEXIS at *30; Robertson v. State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006) (when the defense rests mainly on the credibility of the defendant, a lawyer is deficient in allowing the jury to hear prejudicial and inadmissible evidence, like prior convictions, during the guilt/innocence phases, since doing so could serve no strategic purpose). As a result, defense counsel for Dryer was deficient "as a matter of law." Dryer, 2023 Tex.App. LEXIS 3831 at *30. As an alternative for admissibility, the State argued that the extraneous offense evidence was admissible as rebuttal evidence, since the defense had opened the door. The First District rejected that argument holding that such evidence is only admissible after the defense "genuinely raise[s]" the issue. Id. at *34; see also De La Paz, 279 S.W.3d at 343.

In De La Paz, the defense's basic attack was that both witnesses were lying and had ulterior motives. Id. at 345. And, as the Court of Criminal Appeals pointed out: "one well-established rationale for admitting evidence of uncharged misconduct is to rebut a defensive issue that negates one of the elements of the offense." Id. But "a mere denial of commission of an offense generally does not open the door to extraneous offenses because . . . a defendant generally denies commission of the offense at trial-that is the reason for having a trial." Id.

Here, as in Dryer, there is no reasonable trial strategy that would allow trial counsel to let a jury hear this highly prejudicial inadmissible evidence. Trial counsel's attempt at objecting ("it's prejudicial and we do not know what happened here) shows he recognized the prejudice to Appellant. The evidence was then used by the State to fully discredit the defense witnesses ("the question isn't if you believe them, it's why would you?"). The defense rested mainly on the credibility of Appellant's family and trial counsel allowed the jury to hear prejudicial and inadmissible evidence-a charge regarding which ZERO facts were known, except that it sounded bad and involved children-which had been filed 20 years before this trial, and which had been dismissed-for unknown reasons. There is clearly no strategic purpose in not lodging full and proper objections to such admission.

iii. Prejudice

A single error is not prejudicial for purposes of ineffective assistance of counsel unless it was both egregious and had a seriously deleterious impact on counsel's representation as a whole. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013). Deficient performance which results in admission of extraneous offense evidence can "[change] the course of the entire trial to the [defendant's] detriment without any conceivable strategic or tactical benefit to the defense." Dryer, 2023 Tex.App. LEXIS 3831 at *38. Evidence of extraneous offenses is inherently prejudicial and harms the defendant by forcing the defendant to defend himself against charges that are not part of the present prosecution. Id. Further, "it encourages the jury to convict based on bad behavior instead of proof of the specific crime charged." Id.

Trial counsel's singular and combined errors were egregious and had a seriously deleterious impact on his representation. As the court noted in Dryer, testimony about seemingly similar extraneous offenses is "damning evidence." Id. at *35. As in Dryer, the State wished to discredit the defense using the extraneous evidence and they argued it in closing arguments as both discrediting of the defense witnesses and bolstering of the State's. Like Dryer, Appellant found the jury retiring considering not just the two charges against him but also the 20-year-old, dismissed injury to a child case. Trial counsel's failure singularly and in conjunction with Issue Two prejudiced Appellant.

iv. Conclusion

Trial counsel was deficient in failing to properly and fully object to the admission of inadmissible extraneous offense evidence in the guilt/innocence phase. This deficient performance prejudiced Appellant.

5. Issue Five: Texas law limits the imposition of costs of court upon Appellant to only the highest offense category of conviction.

i. Standard of Review

An appellate court reviews the assessment of court costs to determine if there is a basis for the cost, not to determine if there was sufficient evidence offered at trial to prove each cost, and traditional Jackson evidentiary-sufficiency principles do not apply. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. Feb. 26, 2014). Appellant need not have objected at trial to raise a claim challenging the bases of assessed costs on appeal. Id., at 391 (internal cites omitted). When a trial court improperly includes amounts in assessed court costs, the proper appellate remedy is to reform judgment to delete improper fees. Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013).

ii. In a single plea or trial involving multiple offenses, costs of court may be assessed only once.

Tex. Code Crim. Proc. Art. 102.073 provides that in a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant. Tex. Code Crim. Proc. Art 102.073 (a) (2021). Art. 102.073 became effective on September 1, 2015, and is applicable to costs imposed on or after that date, regardless of when the offense occurred. Acts 2015, 84th Leg., ch. 1160 (S.B. 740) §2.

Prior to the enacting of Art. 102.073, the Texas Court of Criminal Appeals had determined that the Texas Legislature intended "a single criminal action" to mean a single trial or proceeding-no matter how many offenses were tried or pleaded to. Ex parte Pharr, 897 S.W.2d 795, 796 (Tex. Crim. App. Apr. 5, 1995) (citing LaPorte v. State, 840 S.W.2d 412, 414 (Tex. Crim. App. 1992)). Though Pharr involved offenses arising from the same criminal episode, Art. 102.073 is not so limited. Hurlburt v. State, 506 S.W.3d 199, 201-02 (Tex. App.-Waco 2016, no pet.) (holding the statute does not limit its reach to convictions arising out of the same criminal episode, but rather it applies to convictions of "two or more offenses or of multiple counts of the same offense"). As the court stated in Hurlburt:

"[I]n a single criminal action" has been interpreted by the Court of Criminal Appeals [in Pharr and LaPorte] and that interpretation has been accepted indicates to us that we must presume the Legislature meant for the same interpretation to apply to the same phrase when the Legislature used it in article 102.073(a). Thus, we presume that the Legislature, in using the phrase, "in a single criminal action" in article 102.073(a), meant the phrase to be interpreted as "allegations and evidence of more than one offense… [which] are presented in a single trial or plea proceeding" as stated in Pharr.

Hurlbert, 506 S.W.3d at 203.

Further, Art. 102.073(b) provides that in a proceeding such as this the amount of court cost is to be determined using the highest category of offense based on the convictions. Tex. Code. Crim. Proc. Art. 102.073(b); see also Cain v. State, 525 S.W.3d 728, 733-34 (Tex. App.-Houston [14th Dist.] 2017, no. pet.); Williams v. State, 495 S.W.3d 583, 591 (Tex. App.-Houston [1st Dist.] 2016).

iii. Appellant's cases were all presented in a single criminal action.

Appellant's cases were presented to the court contemporaneously as part of the trial by jury. (3RR44-47). Evidence was presented on both charges. (3RR43- 4RR). Following the presentation of evidence, the jury found Appellant guilty of the lesser included offense of aggravated sexual assault in each of the cases on appeal, and the trial court-in line with the waivers and agreements between the State and Appellant-sentenced Appellant to 15 years in TDCJ-ID in each case, with the sentences to run concurrently. (5RR9-10).

iv. Appellant was unlawfully charged duplicative costs of court in F1776222.

Appellant was charged costs of court in each of the cases on appeal, despite the pleading of these cases in a single criminal action. In Cause Number F1776221, Appellant was charged a total of $401.00 for costs of court and fees (680CR138).

In F1776222, Appellant was charged $401.00 for identical fees and costs of court. (686CR80).

(Image Omitted) (680CR138).

(Image Omitted) (686CR80).

Each charge on F1776221 is clearly identical to each charge on the bill in F1776222. Line 1 of each bill of costs charges $100.00 for "Chap," defined in the Clerk's Record as the Child Abuse Prevention Fund. (See 680CR137; 686CR79). Line 2 of each bill, supra, charges $40.00 for the Clerk's Fee. Line 3 of each bill, supra, charges a $1.00 Jury Fee. In each, Line 4 charges a Courthouse Security Fee of $10.00. Line 5 of each bill charges $185 for Consolidated State Fees. Line 6 of both charge a County Records Management Fee of $25.00. Each bill provides in Line 7 for a fee of $25.00 for "SPC." The "glossary" does not provide any explanation as to what this fee covers. (See 680CR137; 686CR79). Finally, Line 7 of each bill charges Appellant $15.00 as a time-payment fee.

Each bill is fully duplicative of the other, and both cases were tried in a single criminal action. As a result, Art. 102.073(b) controls. Since the highest category of offense based on the convictions is the same in both cases, costs are also the same in both cases. In such cases, the oldest case (or lowest numbered case) should be adjudged the costs, here F1776221. Since it is unclear on the face of the record whether there is a basis in the law for the cost coded "SPC" that cost should be deleted.

v. Conclusion

Appellant's judgment in F1776222 should be reformed to reflect zero costs of court, as required by Tex. Code Crim. Proc. Art. 102.073. The bill of costs in F17776221 should be reformed to reflect only proper costs which have a basis in the applicable law, in this case totaling $361.00 after deleting "SPC" and the IP-PLN addressed in Issue Six, infra.

6. Issue Six: Texas law prohibits the imposition of a time-payment fee when the conviction is not yet final.

i. Standard of Review

The standard of review regarding the assessment of the time payment fee is the same as set forth in Appellant's fourth issue. See supra.

ii. The Imposition of a Time-Payment Fee is Untimely.

In Dulin v. State, the Court of Criminal Appeals held that the pendency of an appeal stops the clock for purposes of the time payment fee. Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. March 31, 2021). Thus, the filing of notice of appeal stops the clock and suspends a defendant's obligation to pay court costs. Id., see also Shuler v. State, 650 S.W.3d 683, 689-90 (Tex. App.-Dallas 2022, no pet).

iii. Relevant Section of the Statute

Former Section 133.103 of the Texas Government Code governs the assessment and distribution of the time payment fee which is assessed against Appellant in this case.⁶ It provides that a convicted person is required to pay a time-payment fee upon being convicted of a felony where any part of the fine, court costs, or restitution is paid on or after the 31st day after the date the judgment is entered assessing said fine, costs, or restitution. See Tex. Local Gov't Code § 133.103 (2019). The statute further directs the fee to be allocated in two ways: subsection (b) directs that 50 percent of the fees collected under the time payment fee be sent to the comptroller for deposit into the general revenue fund; and subsection (d) directs that the remaining fees be deposited in the "general revenue account of the county or municipality." Id.

6 The Texas Legislature passed legislation, effective January 1, 2020, that transfers Texas Local Government Code section 133.103 to Texas Code of Criminal Procedure article 102.030 and revises the statute to provide that all of the fees collected under the section are "to be used for the purpose of improving the collection of outstanding court costs, fines, reimbursement fees, or restitution or improving the efficiency of the administration of justice in the county or municipality. See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess. Law Serv. Ch. 1352. The changes apply only to a cost, fee, or fine assessed on a conviction for an offense committed on or after the effective date of the Act. Id. § 5.01. Ovalle v. State, 592 S.W.3d 615, 617 n.1 (Tex. App.-Dallas 2020, no pet.); see also Warren v. State, Nos. 12-20-00156-CR, 12-20-00159-CR, 2021 Tex.App. LEXIS 269, *3 n.3 (Tex. App.-Tyler 2021, no pet. h.) (mem. op., not designated for publication) (citing Ovalle to explain why former law applies rather than the law effective on January 1, 2020).

Here, the Bill of Costs assessed a $15.00 time payment fee in each case on appeal on July 10, 2022. (See Tables, supra at p. 61). Notice of appeal was timely filed in F1776221 on July 5, 2022, and in F1776222 on July 14, 2022 (with leave of this Court) (680CR120; 686CR56). As shown in Issue Four, costs of court may only be assessed in Cause Number F1776221. Where costs can only be assessed in a single case, so may a time-payment fee only be assessed in that same single case. If no costs can be assessed, no time-payment fee may either. As a result, even if proper at some time in the future, it is not proper now. Thus, the time payment fee assessed here against Appellant must be struck in both cases.

iv. Conclusion.

The time-payment fee (labeled IP-PLN) must be stricken from the bill of costs in both cases. If the costs of court in F1776221 are not paid within 30 days of issuance of mandate, then the clerk of the court may charge the legally permissible time-payment fee. No time-payment fee may be charged in F1776222.

XI. Conclusion and Prayer

For the reasons stated in this Brief, Appellant prays that upon appellate review of Issues One through Four, this Court of Appeals reverse the judgment of conviction and remand these cases to the trial court for a new trial on the merits. Regarding Issues Five and Six, Appellant prays this Court reform the judgment in each of these cases, deleting the unconstitutionally or improperly imposed fines and costs of court.

XII. Certificate of Service

This certifies that, on the same date as the filing of this brief, a copy of was served on the Dallas County District Attorney's Office, by email to the Appellate Division generally at dcdaappeals@dallascounty.org. See Tex. Rule App. Proc. 9.5 (2022).

XIII. Certificate of Compliance with Tex. Rule App. Proc. 9.4

This certifies that this document complies with the type-volume limitations because it is computer-generated and does not exceed 15,000 words. Using the word-count feature of Microsoft Word, the undersigned certifies that this document contains 12,521 words in the entire document except in the following sections: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. This document also complies with the typeface requirements because it has been prepared in a proportionally-spaced typeface using Microsoft Word in 14-point font. See Tex. Rule App. Proc. 9.4 (2022).