ACCEPTED 06-14-00010-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 1/26/2015 10:56:34 AM DEBBIE AUTREY CLERK No. 02-13-00578-CR IN THE FILED IN SIXTH COURT OF APPEALS 6th COURT OF APPEALS TEXARKANA, TEXAS Texarkana, Texas 1/26/2015 10:56:34 AM DEBBIE AUTREY CATRINA MALDONADO, Clerk Appellant, V THE STATE OF TEXAS, Appellee.

Appealed from the 235th Judicial District Court Of Cooke County, Texas

MOTION FOR REHEARING

HATCHER & HARRIS, P.C.

BELVIN R. HARRIS Texas Bar No. 09052000 West California Street P.O. Box 279 Gainesville, Texas 76240 Tel: (940) 665-3441 Fax: (940) 665-2000 ATTORNEY FOR APPELLANT CATRINA MALDONADO

Appealed from the 235th Judicial District Court Of Cooke County, Texas

MOTION FOR REHEARING

HATCHER & HARRIS, P.C.

/S/ BELVIN R. HARRIS Texas Bar No. 09052000 West California Street P.O. Box 279 Gainesville, Texas 76240 Tel: (940) 665-3441 Fax: (940) 665-2000 [email protected] ATTORNEY FOR APPELLANT CATRINA MALDONADO

IDENTITY OF THE PARTIES & COUNSEL

CATRINA MALDONADO, (called “Maldonado” in this motion) HATCHER & HARRIS, P.C.

BELVIN R. HARRIS, Attorney for Appellant West California Street P.O. Box 279 Gainesville, Texas 76240 Tel: (940) 665-3441 Fax: (940) 665-2000 [email protected] THE STATE OF TEXAS, Appellee, (called “the State” in this motion) COOKE COUNTY DISTRICT ATTORNEY JANICE WARDER, Attorney for Appellee Cooke County Courthouse South Dixon Gainesville, Texas 76240 Tel: (940) 668-5466 Fax: (940) 668-5499

3 of 11 INDEX OF AUTHORITIES CASES

Reese v. State, 33 S.W. 3d 238 (Tex. Crim. App. 2000)……………………… 7 Erazo v. State, 144 S.W. 3d 487 (Tex. Crim. App. 2004)……………………… 7, 9 Erazo v. State, 167 S.W. 3d 889 (Tex. App. Houston 14th 2005, no pet.)…….………………………………………………………………………….7, 9 Texas Rules of Evidence, Rule 403………………………………………........... 9

5 of 11 ISSUES PRESENTED FOR REVIEW

Issue 1: The Court erred in its opinion and holding that the photographs' obvious prejudicial and admitted effect on the jury was outweighed by their probative value.

Issue 2: The Court erroneously held the trial court performed the balancing test required under Rule 403, Texas Rules of Evidence.

6 of 11 ARGUMENT I.

THE COURT ERRED IN ITS OPINION AND HOLDING THAT THE PHOTOGRAPH'S OBVIOUS PREJUDICIAL AND ADMITTED EFFECT ON THE JURY WAS OUTWEIGHED BY THEIR PROBATIVE VALUE The Court erred in its opinion and holding that the photographs' obvious prejudicial and admitted effect on the jury was outweighed by their probative value.

To say such photographs of the child two weeks after he was injured by Johnny Alexander did not unfairly impress the "jury in an irrational way" defies logic.

Although the Court placed reliance on 2nd Court of Appeals precedent, it completely disregarded precedent of the Court of Criminal Appeals. Even citing Erazo v. State, 144 S.W. 3d 487 (Tx. Crim. App. 2004), the Court for some unknown reason completely failed to follow its guidance. See Reese v. State, 33 S.W. 3d 238 (Tex. Crim. App. 2000). The Court of Criminal Appeals performed a balancing test and held a photograph inadmissible due to it being unduly prejudicial and remanded case to the Court of Appeals for a harm analysis. The Court of Appeals held the error was harmful stating "... we do not have fair assurance that the erroneously admitted photograph did not influence the jury or that it influenced the jury only slightly in assessing appellant's punishment." Erazo v. State, 167 S.W. 3d 889 (Tex. App. Houston 14th 2005, no pet.). The range of punishment as in this case was 5 years to

THE COURT ERRONEOUSLY HELD THE TRIAL COURT PERFORMED THE BALANCING TESTS REQUIRED UNDER RULE 403, TEXAS RULES OF EVIDENCE.

The Court erroneously held the trial court performed the balancing test required under Rule 403, Texas Rules of Evidence.

Some cases lay emphasis on the lack of time granted the trial court to rule on objections under Rule 403, supra, which completely disregards that such rulings should be made after taking the time to perform the proper balancing. After all, a person's liberty is at stake. An appellate court should focus on the methodology the trial court used rather than the result the trial court reached. Rule 403 and Erazo cases, supra, do not require an appellate court to presume a proper test was performed by the trial court when it was not. Using the court's reasoning in this case, there is little or no need for any balancing test to be done since it assumed, proper or otherwise, the trial court performed such test. This case exemplifies the lack of any balancing test.

Reciting by the court what the trial judge said and did should serve to negate there having been some sort of balancing test conducted. This court should grant a rehearing and examine the record for any indication of a balancing test being performed by the trial court.

For whatever reason, the Court mentioned at page 4 of its opinion a "related" case of State v. Johnny Alexander. Since it was mentioned, the Court should take note of 11 of a statement made by the State in that case, to wit: "This man hurt this little boy and killed him. ... Alexander prevented the mother from seeking medical treatment for Nathan..." "She (Nathan's mother) wanted to take the child to the doctor" (Reporter's Record of trial of Johnny Alexander, unknown page number. Since the Court mentioned the case, it apparently has reviewed the record.).

PRAYER Maldonado prays that this court reverse the judgment of the trial court and remand for a new punishment trial.

Respectfully submitted, Hatcher & Harris, P.C.

/s/ Belvin R. Harris State Bar No. 09052000 Attorney for Catrina Maldonado

/s/ Belvin R. Harris

Janice Warder Cooke County District Attorney, Attorney for Appellee Courthouse South Dixon Gainesville, Texas 76240 *Via E-Mail* Sue Korioth Sue Korioth, PC P.O. Box 600103 Dallas, Texas 75360-0103 *Via E-Mail*

CERTIFICATE OF COMPLIANCE I certify that this document contains 1094 words, according to Microsoft Word 2007 word counter, and in all other ways, conforms with Texas Rule of Appellate Procedure 9.4(i) (3).

/s/ Belvin R. Harris