Larry Donnell Boswell, Jr. v. State

ACCEPTED 03-15-00540-CR

8225614 THIRD COURT OF APPEALS

AUSTIN, TEXAS 12/14/2015 2:45:26 PM

JEFFREY D. KYLE

CLERK THE THIRD

IN THE IN COURT OF

THIRD COURT OF APPEALS APPEALS

AT AUSTIN, AT TEXAS

AUSTIN, TEXAS

FILED IN LARRY DONNELL LARRY DONNELL BOSWELL,

BOSWELL, JR.§ 3rd COURT OF APPEALS

AUSTIN, TEXAS Appellant §§ 12/14/2015 2:45:26 PM

§§ CAUSE NO. 03-15-00540-CR

CAUSE NO. 03—15—00540-CR

JEFFREY D. KYLE V. §§ TRIAL COURT NUMBER

TRIAL COURT NUMBER Clerk

72,904 §§

THE STATE THE OF TEXAS

STATE OF TEXAS §§

Appellee §§

OF APPELLANT

BRIEF OF BRIEF APPELLANT

Appealed from the 27 Appealed from 27"‘ th

Texas Judicial District Court, Bell County, Texas

John Gauntt, presiding

Hon. John Hon.

COPELAND LAW COPELAND LAW FIRM

FIRM Box 399

P.O. Box Cedar Park, Texas Cedar Texas 78613

78613 512-215-8114

Tel/Fax 512-215-8114

Copeland Erika Copeland

Erika

Bar No. 16075250 State Bar 16075250 Attorney for Appellant

HEREBY REQUESTS

APPELLANT HEREBY APPELLANT REQUESTS ORAL ARGUMENT

ORAL ARGUMENT

TABLE OF TABLE CONTENTS OF CONTENTS

Page Page

Table of Contents Table i-vii Index of Authorities Index viii-xii I-1

. and Counsel 1. Identity of Parties and Counsel 1 2. Statement Case

Statement of the Case 3 Background

3. Background 3

Regarding Oral Statement Regarding

4. Statement Argument

Oral Argument 8 5. Issues Presented 9

A. One

Issue One The trial court erred in admitting evidence The of prior bad acts acts over defense counsel‘s counsel’s

Texas Rules of Evidence objections under Texas Evidence 401, 402, 403 andand 404(b). Specifically, counsel

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

B. Two

Issue Two The trial court abused its discretion by The by denying Boswell‘s

Boswell’s motion for new trial trial based on a Brady when the prosecution failed to Brady violation when disclose a witness‘ history of witness’ of reprimands while serving as a police officer.

C. Three

Issue Three The trial court abused its discretion by The by denying Boswell‘s

Boswell’s motion for new trial trial based on a Brady when the prosecution failed to Brady violation when impeachment and bias evidence disclose impeachment concerning a State‘s

State’s witness that that included evidence of a history of of reprimands while the witness served as a police officer. officer.

B. Summary of the Arguments

Summary Arguments 11 i

TABLE OF TABLE OF CONTENTS,

CONTENTS, continued

Page Page

One-Restated

7. Issue One-Restated 11

The trial court erred in admitting evidence The of of prior bad acts acts over defense counsel‘s counsel’s objections Texas Rules of Evidence under Texas Evidence 401, 402, 403 and

403 and 404(b). Specifically, counsel objected 404(b). Specifically, to testimony that Boswell was was affiliated with any criminal street gang. (A) (A) Statement of Pertinent Evidence 11 (B) Law (B) Applicable Law 13

(1) AtAt trial, all relevant evidence is admissible unless excepted by by the Constitution, statute or other rules. (2) Evidence of other crimes wrongs, or acts is not admissible to prove the character of a person in order to show of show conformity with the character. may be excluded if

(3) Relevant evidence may its probative value is substantially outweighed byby a danger of unfair prejudice.

(C) Review (C) Standard of Review 15

(1) AA trial trial court‘s court’s ruling is is reviewed for discretion. an abuse of discretion. (2) AA trial trial court‘s court’s ruling will be upheld if if within the zone of reasonable disagreement. disagreement.

TABLE OF CONTENTS, TABLE OF CONTENTS, continued

Page Page

(D) Argument (D) Argument 15

(1) Evidence of Boswell‘s

Boswell’s gang was not relevant. membership was membership

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

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

(2) Even Rule 403 the if relevant, under Rule was so prejudicial as to outweigh evidence was any probative value of the evidence. affiliation (a) Evidence of gang affiliation was a ―distraction‖ to

“distraction” to the jury. jury.

(b) The wasnot

The jury was not equipped to of the evaluate the probative force of testimony.

(E) (E) Harm

Harm 18

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

Boswell’s substantial rights. rights.

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

Page Page

(b) A A review here indicates the evidence contributed to to Boswell‘s

Boswell’s guilty verdict.

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

The State emphasized (2) The Boswell‘s Boswell’s gang affiliation affiliation in closing arguments. (3) Every witness for the State spoke to or about Boswell‘s Boswell’s gang affiliation. (4) The State‘s

State’s “gang

―gang expert‖ expert” spent a great deal of time on Boswell‘s

Boswell’s role with a criminal street gang. (5) In dramatic fashion was before the jury, Boswell was ordered to partially disrobe to show what show what were described as when the same gang tattoos when same was available in evidence was photographs. photographs.

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

Boswell’s substantial rights.

TABLE OF TABLE OF CONTENTS,

CONTENTS, continued

Page Page

Two-Restated

7. Issue Two-Restated 20

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

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

8. Issue Three-Restated 21

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

Boswell’s trial based on a Brady when the prosecution failed to Brady violation when impeachment and bias evidence disclose impeachment concerning a State‘s

State’s witness that that included evidence of a history of reprimands while the witness served as a police officer. officer.

(A) (A) Statement of Pertinent Evidence (B) Review — of Review (B) Standard of New Trial

– New (1) AA reviewing court reviews a trial court‘s court’s ruling on a motion for new trial for discretion. an abuse of discretion. (2) Trial Court would would not abuse its discretion in granting new new trial if the defendant articulated a valid claim, produced evidence supporting the claim, showed prejudice to his substantial and showed rights.

(C) Law —– Brady (C) Applicable Law Brady Violation

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

TABLE OF CONTENTS, TABLE OF CONTENTS, continued

Page Page

(2) AA Brady when the

Brady violation occurs when State suppresses, even inadvertently, evidence favorable to the defendant.

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

(D) Argument (D) Argument

(1) In Boswell‘s

Boswell’s post-conviction hearing, the authenticity of the records containing impeachment/bias evidence was was acknowledged and the records were not furnished to the defense.

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

The failure to disclose the records was (2) The was ―material‖ (i.e., “material” (i.e., prejudicial to Boswell) when when viewed in light of other evidence presented at trial.

(a) The only evidence of of Boswell‘s

Boswell’s involvement in the robbery presented came from at trial came from accomplices whowho had a motive to testify favorable each had for the State.

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

Various witnesses. accomplice witnesses.

TABLE OF CONTENTS,

TABLE OF CONTENTS, continued

Page Page

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

Witnesses.

(1) Here, the witness‘ witness’ credibility could not be attacked except through the offending evidence.

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

Boswell’s gang activity. activity.

9. Prayer 33 10. Certificate of With Rule 9 of Service and of Compliance With 34 INDEX OF AUTHORITIES INDEX OF AUTHORITIES

Authorities Page

Page

Supreme Court United States Supreme Court cases

Brady v. Maryland Brady Maryland 9,20

373 U.S. 83, 83 S. Ct. at 1194, 373 ED. 2d

10 L. ED.

1194, 10 2d 215 (1963) Davis v. Alaska Davis v. Alaska 27

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

US.

Giglio v. U.S. 23,27

150,92 405 U.S. 150, 104 (1972)

31 L.Ed.2d 104

92 S. Ct. 763, 31

Kyles v. Whitley

v. Whitley 22,29

U.S.419,115 514 U.S. 1555, 131

419, 115 S. Ct. 1555, 490(1995)

131 L.Ed.2d 490 (1995) Napue Napue v. Illinois 28

US. 264, 79 S. Ct. 1173, 360 U.S. 1217 (1959)

1173, 3 L.Ed.2d 1217

United States v. United v. Bagley 28,29

481 (1985)

105 S. Ct. 3375, 87 L.Ed.2d 481

473 U.S. 667, 105

Court of Appeals United States Court Appeals cases

Johnson v. Mills Johnson v. 30

592 F.3d 730 (2010)

Texas Court of Criminal

Texas Court Appeals cases Criminal Appeals

Authorities Gigliobianco v. State 14,17,

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

Hammer v. State Hammer v. 14 S.W.3d 555 (Tex. Crim. App. 2009)

296 S.W.3d 8

INDEX OF AUTHORITIES,

INDEX OF AUTHORITIES, continued

Texas Court of Criminal

Texas Court Appeals cases, continued Criminal Appeals

Authorities Page

Page Harm Harm v. State 24 S.W.3d 403 (Tex. Crim. App.

183 S.W.3d 183 App. 2006) Herndon Herndon v. State 23,26,

S.W.3d 901 215 S.W.3d App. 2007)

901 (Tex. Crim. App. Johnson v. State Johnson v. 18

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

S.W.2d 410 App. 1998)

1998)

King King v. State 17

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

Little v. State

v. 25 991 S.W.2d 864 (Tex. Crim. App. 1999) 991 S.W.2d 1999)

Martin Martin v. State 13,14

Crim. App. 2005)

173 S.W. 3d 463 (Tex. Crim.

Motilla v.

v. State 18 S.W.3d 352 (Tex. Crim. 78 S.W.3d Crim. App. 2002)

Macias v. State Macias v. 16

959 S.W.2d App. —

S.W.2d 332 (Tex. App. Houston [14

– Houston th

[14”‘ 1997)

Dist.] 1997) Pena Pena v. State 24 S.W.3d 797 (Tex. Crim. App.

353 S.W.3d 353 App. 2011) Solomon Solomon v. State 18

App. 2001)

Crim. App.

49 S.W.3d 356 (Tex. Crim.

Fury State v. Fury 25 S.W.3d 67 (Tex. App. —

86 S.W.3d Houston [1

– Houston st

[1S‘Dist.]

Dist.] 2005, pet. ref’d) per. ix vm-no viii

INDEX OF AUTHORITIES,

INDEX OF AUTHORITIES, continued

Texas Court of Criminal

Texas Court Appeals cases, continued Criminal Appeals

Authorities Page

Page Thomas

State v. Thomas 25

S.W.3d 99 (Tex. Crim.

428 S.W.3d App. 2014)

Crim. App. Vasquez v. State Vasquez 16

S.W.3d 229 67 S.W.3d 229 (Tex. Crim.

Crim. App. 2002)

Westbrook v. State Westbrook 32 S.W.3d 103

29 S.W.3d App. 2000)

103 (Tex. Crim. App.

Texas Court of Appeals Texas Court Appeals cases

Brumfield Brumfield v. State 15

18 S.W.3d 18 921 (Tex. App. —

S.W.3d 921 Beaumont 2000,

– Beaumont pet. ref’d)

2000,pet.

In In the Matter ofC.F.C.

Matter of C.F.C. 31 1999 WL675440 (Tex. App. — 1999 WL675440 – San Antonio, August

August 31, 1999 (not designated 1999 designatedforpublication» for publication))

Grant v. State 13

WL 50254777, at *5 2015 WL 2015 *5

App. —– Houston (Tex. App. Houston [14 th

[14‘h pet. ref’d)

Dist.] Aug. 25, 2015, pet. ref’d) Montgomery v. State Montgomery v.

821 S.W.3d 821 14 (Tex. App. —Dallas

S.W.3d 14 – Dallas 1991)

1991) 14 Newton v. State Newton v. 14 S.W.3d 315 (Tex. App. —

301 S.W.3d 301 Waco 2009,

– Waco pet. ref’d)

2009,pet.

v. State

Ojeda v. 16

2004 WL2137653 2004 App.—E1 Paso, September 24, 2004,

WL2137653 (Tex. App.—El (not designated for publication, pet. ref’d publication, pet. ref’d 2005)

INDEX OF AUTHORITIES,

INDEX OF AUTHORITIES, continued

Texas Court of Appeals

Texas Court Appeals cases, continued

Authorities Page

Page Tibbs v. State Tibbs 15

125 S.W.3d 125 App. —

S.W.3d 84 (Tex. App. – Houston

Houston [14 th

[14”‘ Dist.] 2003, pet. ref’d) pet. ref ’d)

Statutes

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

APP. PROC. 17 TEX. R. APP. TEX. APP. P. 21.3, (h) 22,23 TEX. PENAL TEX. CODE §19.03(a)(2), (b)(1)(West 2014)

PENAL CODE 3,31,32 CODE CRIM.

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

CRIM. PROC. 3, 9 TEX. R. EVID. TEX. EVID. 401,402,403,404(b) 9,1,13

Periodicals/Legal Journals

Stephen S. Troft 29

Words of Words Warningfor of Warning Using for Prosecutors Using

Witnesses, 47 Hastings, I.J.

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

1391, 1395 xi xxi

THE THIRD

IN THE IN COURT OF

THIRD COURT OF APPEALS

APPEALS AT AUSTIN,

AT TEXAS AUSTIN, TEXAS

LARRY DONNELL LARRY DONNELL BOSWELL,

BOSWELL, JR.§ Appellant §§

§§ CAUSE NO.

CAUSE NO. 03-15-00540-CR

03-15-00540-CR V. §§ TRIAL NUMBER 72,904

COURT NUMBER TRIAL COURT

§§

THE STATE THE OF TEXAS

STATE OF TEXAS §§

Appellee §§

OF APPELLANT BRIEF OF BRIEF APPELLANT

TO THE TO HONORABLE COURT

THE HONORABLE COURT OF

OF APPEALS:

APPEALS:

OF PARTIES

IDENTITY OF

1. IDENTITY AND COUNSEL PARTIES AND COUNSEL

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

Court that interested parties herein are as follows:

LARRY DONNELL LARRY DONNELL BOSWELL,

BOSWELL, JR., appellant, TDCJ

TDCJ No. 02011634,

FM 2054, Tennessee Colony, Texas 75886.

2664 FM

Michael Unit, 2664

ROBERT D. HARRIS, ROBERT ZACHARY BOYD,

HARRIS, III and ZACHARY BOYD, trial attorneys for

404 N. Main appellant, 404 Box 870, Copperas Cove,

Main St., Belton, Texas, 76513, and P.O. Box

Texas, 76522, respectively.. respectively..

ERIKA ERIKA COPELAND,

COPELAND, appellate attorney for appellant, PO.

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

Box Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr. WILLIAM NELSON WILLIAM NELSON BARNES BOB ODOM,

BARNES and BOB ODOM, Bell County Assistant District Attorneys, trial and appellate attorneys, respectively, for appellee, the State

Box 540, Belton, Texas 76513. of Texas, P.O. Box of Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

THE THIRD IN THE IN COURT OF

THIRD COURT OF APPEALS

APPEALS AT AUSTIN,

AT TEXAS AUSTIN, TEXAS

LARRY DONNELL LARRY DONNELL BOSWELL,

BOSWELL, JR.§ Appellant §§

§§ CAUSE NO.

CAUSE NO. 03-15-00540-CR

03-15-00540-CR V. §§ TRIAL NUMBER 72,904

COURT NUMBER TRIAL COURT

§§

THE STATE THE OF TEXAS

STATE OF TEXAS §§

Appellee §§

STATEMENT OF 2. STATEMENT THE CASE OF THE CASE

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

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

PENAL CODE (West 2014) (C.R. 1, As the State had l, p. 77). As had not sought the death penalty, the trial court sentenced Mr. Boswell to to life life in in the Texas Department of Criminal Justice‘s

Justice’s

TEX. Institutional Division without the possibility of parole. (R.R. 7, p. 75), and see TEX. CODE CRIM.

CODE PROC. art. 37.071(1) (West 2014). Boswell gave timely notice of

CRIM. PROC. appeal, and the trial court certified (CR. 1, certified his right to do so. (C.R. 1, pp. 81, 130).

130).

BACKGROUND 3. BACKGROUND

Paul Sterling testified that he was Waco for a meeting from Waco was called to Killeen from with other members of of the Gangster Disciples (hereafter ―G.D.‘s).

“G.D.’s). Once there, there, he met home used by met in a home by the gang as a clubhouse, and there, he testified, was asked testified, he was to to go ―hit

“hit a lick‖ lick” by by the G.D.‘s “Governor”, Larry Boswell, Jr.

G.D.’s ―Governor‖, “Word.” (R.R.

Jr. aka ―Word.‖ Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr. 5, p. 68). Sterling said that he understood ―hit

“hit a lick‖ mean rob someone. Sterling lick” to mean

“Slim” “Red”, ―Slim‖ testified that he refused to undertake the task, but Ricky Brandon, aka ―Red‖,

“DC.” (Danny “Horsehead” (Kevin Lee Stafford) and ―D.C.‖

(Stephen Mitchell Lewis), ―Horsehead‖ home armed Carruth) agreed to the task and left the home armed with a pistol and a rifle Red’s rifle in Red‘s (RR. 5, pp. 69-70). Sterling said that the four were white Suburban. (R.R. were gone thirty to

Red had been shot during the robbery. forty minutes and returned to announce that Red when Red

According to the returning robbers, when Red had emerged emerged unexpectedly from a back bedroom of the house being robbed, Slim had back bedroom had panicked and accidentally shot

Red at the scene. By announced that they had left Red

Red. (R.R. 5, p. 73). Slim announced By the member of the gang time Boswell and another member gang returned to retrieve Red, Sterling said, the police had Red’s body. (R.R. 5, had already arrived so they returned home without Red‘s 5, pp. pp. 74-75). was targeted by Jamie Arrington was by the would-be robbers}1 Arrington testified would-be robbers. was kicked in, and he, his girlfriend and that sometime after midnight his front door was gun point by two daughters were accosted at gun two by four armed He testified that they armed men. He bound him and his family with duct tape and eventually put them bound him them in a bathtub while was searched for cash. (R.R. 5, pp. 27-29). the house was The robbers threatened

The them to disclose where

fiancee to induce them

Arrington and his fiancee where Arrington had hidden his testified that he heard a gunshot as he and money. (R.R. 5, pp. 32-33). Arrington testified were leaving, they warned his family lay in the bathtub, and that as the robbers were him warned him managed to get loose from not to follow. Arrington managed from his bindings, and he ran outside

find that three of the robbers had fled; to find home had drug the fourth outside his home

fled; they had from an apparent gunshot wound. where he lay dead near his porch from where (RR. 5, pp. 34- wound. (R.R. 37).

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

p. 130). 5, p. by the robbers were ever recovered. guns used by

Daniel Carruth, “D.C.”, testified

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

(or ―Word‖) the G.D.‘s “Governor” or leader when Boswell took over that

G.D.’s ―Governor‖ that role after after the G.D.‘s

G.D.’s was removed. (R.R. 5, p. 140). former leader was On the night of

140). On of the 16 th

16”‘, , Carruth him and three other gang testified, Boswell instructed him members to go gang members He go hit a lick. He 2Ricky was ordered by said that he was members gang members by Boswell to act as look-out for the other gang when when they stormed into Arrington‘s He said that after they entered the house,

Arrington’s house. He home’s occupants were accosted, tied with duct tape and put in the bath tub as the home‘s the house was searched for Arrington‘s

Arrington’s cash. (R.R. 5, p. 146).

5, p. 146). Carruth said that that When he went during the robbery he heard a gunshot from the back bedroom. When went to saw that Slim had investigate, he saw had accidentally shot Red when the latter came

Red when came unexpectedly from a back bedroom. (R.R. 5, p. 147). testified that he tried

147). Carruth testified to to help Slim carry Red from the home back to to Red‘s SUV, but eventually they left

Red’s SUV, left when Red his body near the front porch when Red proved too heavy for the two men to carry two men

Word 148-149). After disclosure of the shooting to Word to the get-away car. (R.R. 5, pp. 148-149). on their their return to gang’s clubhouse, Carruth said that to the gang‘s that Boswell and another gang member, Beau, returned to to the shooting to Red’s body, but by to retrieve Red‘s was by then, it was The police were already on the scene. (R.R. 5, pp. 150-151). too late. The 150-151).

Bowman, a former police officer and expert on John Bowman, on gangs in general and andthe the when Brandon testified that when

Gangster Disciples in particular, testified was identified

Brandon was identified his who was girlfriend eventually led police to Paul Sterling who was brought in for questioning. questioning. Bowman said that he questioned Sterling who, after initially denying any knowledge Bowman knowledge knew about the night Red of the crime, eventually told the police all he knew of Red was was shot, who was including who was involved in the planning and execution of the botched robbery. Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Bowman also gave detailed testimony about the Over objection, Bowman

(R.R. 6, p. 48). Over G.D.‘s, G.D.’s, their their origin, origin, evolution and history history as a violent street street gang, their their corporate influence in the state. (R.R. 6, pp. 35, et. structure and the nature and extent of their influence et. seq.). seq.). Bowman identified

Bowman identified Boswell as as the gang‘s “Governor” since the gang’s leader or ―Governor‖ spring of 2012, and he described Boswell‘s

Boswell’s ascent to his leadership role in the gang. The trial court had

58)}3 The

(R.R. 6, pp. 58). remove his shirt for the jury, had Boswell remove jury, and Bowman presented a detailed explanation for the various tattoos covering Boswell‘s Bowman Boswell’s body and arms which upper body Bowman said had detailed meanings to other gang which Bowman pp.54-57 and see State‘s members. (R.R. 6, pp.54-57 members. He concluded his

State’s Exhibits 41-45). He testimony by by discussing the level of cooperation he had received in his investigation from members of from other members of the G. D.‘s.

D.’s.

3 Bowman’s testimony was admitted over objection, and itit became one of Bowman‘s of the subjects of of Boswell‘s motion for new trial B0swell’s trial as well as the subject of of issues to to follow in in this this brief. brief. Evidence more detail below. pertinent to those issues will be discussed in more Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell Boswell,

Boswell, Jr. STATEMENT REGARDING

4. STATEMENT REGARDING ORAL ARGUMENT

ORAL ARGUMENT would aid the Court in reaching Appellant Counsel believes that oral argument would its decision and, therefore Counsel requests such argument.

Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

PRESENTED ISSUES PRESENTED

5. ISSUES

ONE

ISSUE ONE ISSUE

The trial court erred in admitting evidence of prior bad acts over defense The counsel‘s Texas Rules of Evidence counsel’s objections under Texas and 404(b).

Evidence 401, 402, 403 and was affiliated with any Specifically, counsel objected to testimony that Boswell was Specifically,

14- criminal street gang and to any evidence related to any such gang. (R.R. 5, pp. 14- 15).

15).

TWO ISSUE TWO ISSUE

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

Boswell’s motion for new on a Brudy4 based on when the prosecution failed to disclose a witness‘

Brady4 violation when witness’ history of reprimands while serving as a police officer. of officer.

THREE ISSUE THREE ISSUE

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

Boswell’s motion for new on a Brady based on when the prosecution failed to disclose impeachment

Brady violation when impeachment and bias evidence concerning a State‘s

State’s witness that included evidence of a history of officer. reprimands while the witness served as a police officer.

"4

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

Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

SUMMARY OF SUMMARY ARGUMENTS

THE ARGUMENTS OF THE

The trial court erred in The in admitting evidence of Boswell‘s

Boswell’s gang affiliation affiliation as as The evidence was gang related evidence. The well as other gang was irrelevant and offered only proof of Boswell‘s proof of The

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

As a result, there was testimony. As was a clear disparity between its probative value and the danger of unfair prejudice.

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

Brady violations. The State, however The “gang however inadvertently, failed to provide disciplinary records of its ―gang expert‖, officer, who expert”, a former police officer, who testified extensively about street gangs, their origins and evolution, and particularly particularly Boswell‘s

Boswell’s affiliation affiliation and standing within a would have provided evidence of the

Those disciplinary records would specific gang. Those witness‘ witness’ bias because his record of participation in other trials as an expert on gangs was reflected gang related subjects was and gang which he used to reflected in his curriculum vitae which Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of

v. The ofTexas

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

State’s accomplice witnesses. ONE RESTATED ISSUE ONE 7. ISSUE RESTATED

The trial court erred in admitting evidence of prior bad acts over defense The counsel‘s Texas Rules of Evidence counsel’s objections under Texas and 404(b).

Evidence 401, 402, 403 and was affiliated with any Specifically, counsel objected to testimony that Boswell was Specifically,

14-15). criminal street gang. (R.R. 5, pp. 14-15).

STATEMENT OF STATEMENT EVIDENCE

PERTINENT EVIDENCE OF PERTINENT was affiliated Defense counsel objected to any evidence that Boswell was affiliated with any street street gang, as as well as to “gang” or ―gang to the use of such terms as ―gang‖ member” in

“gang member‖ was not relevant and noted describing him. Counsel complained that such evidence was that that Boswell‘s

Boswell’s indictment before the jury jury did not allege organized criminal activity. activity. As a result, any alleged gang appellation, affiliation As was irrelevant. affiliation or activity was would be overwhelmingly Moreover, counsel argued that any evidence of that nature would prejudicial to prejudicial to Boswell‘s

Boswell’s case and would certainly certainly outweigh any probative value Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of

v. The ofTexas

Brief of Appellant 11 l 1 by the offending testimony. (R.R. 5, pp. 14-16). offered by The State countered that

14-16). The Boswell‘s was admissible ―to Boswell’s gang affiliation was show motive, opportunity, intent, plan,

“to show preparation, knowledge, identity, absence of mistake or accident, or other enumerated causes.‖ causes.” In fact, fact, the State urged, Boswell‘s

Boswell’s gang affiliation affiliation was ―part

“part of of what made him a party party to to this this offense…‖, offense...’, and further, further, that that Boswell‘s

Boswell’s gang affiliation affiliation was how one of the State‘s “knows the defendant so identity

State’s witnesses ―knows identity comes into play as well.‖ well.” (R.R. 5, p. 16).

5, p. 16).

The trial trial court denied Boswell‘s

Boswell’s motion to exclude evidence of Boswell‘s

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

RR. 5, pp. 63, 68, 79-80; of this offense. See, e.g., testimony of: Paul Sterling at R.R. of

RR. 5, pp. 140-144, Daniel Carruth at R.R. 140-144, 157. The evidence also included, again as

157. The remove his shirt before the of an order from the trial court that Boswell remove the result of jury, a description jury, and explanation by by the State‘s

State’s gang ―expert‖,

“expert”, John Bowman, of of Boswell‘s Boswell’s various tattoos. tattoos. (R.R. 6, pp. 26 et.

6, pp. specifically, at pp. 41, 54,

et. seq., and, specifically, and 58,

58, as well as State‘s

State’s Exhibits 41-45 (photos of of Boswell‘s

Boswell’s tattoos). Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell Boswell,

Boswell, Jr.

Jr. v. The State of LAW

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

TEX. R. EVID. Constitution, statute, or other rules. TEX. EVID. 402. ―Relevant

“Relevant evidence‖ evidence” is is defined as evidence having ―any defined “any tendency to to make the existence of any fact fact that that is of consequence to the determination of of more probable or less probable of the action more than it it would be without the evidence.‖ TEX. R. EVID. evidence.” TEX. EVID. 401.

Evidence of other crimes, wrongs, or acts is not admissible to prove the show action in conformity with the character. character of a person in order to show TEX. character. TEX. EVID. 404(b). However, such evidence may

R. EVID. may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Martin

Martin v. 173 S.W. 3d

v. State, 173 466 (Tex.

3d 463, 466 App. 2005) (citing Rule

Crim. App. may introduce

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

Relevant evidence may if its probative value is substantially

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

Grant v. State, No. 14-13-01077-CR 403; and see, Grant WL 50254777, at *5

14-13-01077-CR WL *5 (Tex. App.

App. Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of

v. The ofTexas

Brief of Appellant l3 —– Houston

Houston [14 th

[14"‘ Aug. 25, 2015, no

Dist.] Aug. no pet.

pet. h.). In its seminal decision in Montgomery identified four non-exclusive Montgomery v. State, the Court of Criminal Appeals identified factors to be considered in determining whether evidence should be excluded under Rule 403. Those factors were:

Rule were: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time some needed to develop the evidence; and, (4) the proponent‘s The proponent’s need for the evidence. The

Waco reviewed the Court of Criminal Appeals and the Court of Appeals at Waco Montgomery Montgomery decision in Gigliobianco v. 210 S.W.3d

v. State, 210 641-42 (Tex.

S.W.3d 637, 641-42 Crim. App. 2006)(footnotes citations omitted) and Newton S.W.3d 315,

301 S.W.3d Newton v. State, 301

App. —

322-23 (Tex. App. 322-23 Waco 2009, pet.

– Waco pet. ref’d)(footnote citations omitted). In Gigliobianco, the Court restated the pertinent factors as follows: follows: [A] when undertaking Rule [A] trial court, when Rule 403 analysis, must must balance (1) the of evidence along with (2) the inherent probative force of the proffered item of proponent‘s need for that proponent’s that evidence against (3)

(3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency ofof the evidence to main issues, (5) any tendency of the confuse or distract the jury from the main evidence to be given undue undue weight byby a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that consume an inordinate amount presentation of the evidence will consume amount ofof time or merely repeat evidence already admitted. Of Of course, these factors may may well blend together in practice. practice.

--Gigliobianco at 641-42.

Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of Rule 403, the Court of Criminal Appeals wrote in Newton, Rule Newton, ―envisions

“envisions when there is a ‗clear disparity between exclusion of evidence only when ‘clear between the degree

” of of prejudice of the offered evidence and its its probative value.‘ value.’ ‖ --Newton at 322-23 (quoting Hummer --Newton Hammer v. v. S.W.3d 555, 568 (Tex. Crim.

State, 296 S.W.3d Crim. App.

2009)).

STANDARD OF STANDARD REVIEW

OF REVIEW An appellate court reviews a trial An trial court‘s court’s ruling under the Rules of Evidence for an abuse of discretion. Martin S.W.3d at 467. If

173 S.W.3d Martin v. State, 173 was

If the ruling was on any theory of law applicable to the case, in light of what correct on was before the what was trial court at the time the ruling as made, a reviewing court must uphold the judgment. A trial judgment. Id. A trial court‘s court’s ruling on the admissibility of of evidence will be upheld was within the zone of reasonable disagreement. Id. as long as the ruling was ARGUMENT ARGUMENT

Evidence of Boswell‘s gang membership

Boswell’s gang was not relevant. Here, the evidence membership was of gang affiliation of make probable the existence of any fact of affiliation had no tendency to make of was introduced simply in an attempt to connect consequence. Rather, that evidence was show his bad character. gang to show

Boswell to a gang The State could have presented a clear character. The and understandable case explaining that Boswell participated in, or even authored, the plan to to rob Arrington of the latter‘s latter’s ill-gotten ill-gotten gains without interjecting unnecessary information about gangs or Boswell‘s

Boswell’s affiliation affiliation with a gang. Had the Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of

v. The ofTexas

Brief of Appellant l5 State presented its case without the evidence of Boswell‘s gang relationship, the jury

Boswell’s gang of the night could have undoubtedly followed and understood the sequence of events of was not same of the robbery. Moreover, the offending testimony was of same transaction

Rule 404(b). contextual evidence, and thus not admissible as an exception under Rule Indeed, as Houston‘s

Houston’s 14

14”‘ th

District Court of Appeals noted, it it is only in situations commit where there is no other reason for the defendant to have acted as he did to commit where come in during the guilt-innocence a crime that gang-affiliation evidence should come stage of a trial, and that was Tibbs v. State, 125 was not the case here. See Tibbs S.W.3d 84

125 S.W.3d App. —

(Tex. App. Houston [14

– Houston th

[l4“‘ pet. ref’d),

Dist.] 2003, pet. by Justice ref’cl), concurring opinion by Anderson, citing Brumfield Anderson, App. —

S.W.3d 921, 925-26 (Tex. App.

18 S.W.3d

Brumfield v. State, 18 Beaumont

– Beaumont pet. ref’d)

2000, pet. supplied). Boswell‘s ref ’d) (emphasis supplied). Boswell’s gang affiliation was not part of affiliation was of the why the murder of the explanation for why reason for the murder, or part of murder occurred as it it did. did. In fact, fact, Brandon‘s way itit did if

Brandon’s death could have occurred the way if a number of of commit a robbery. In that had simply decided to commit people randomly gathered together had scenario, Boswell could still be guilty of the offense as an accomplice, and clearly, whether he and the men whom he associated for the robbery were members men with whom members of of would play no gang or not would a gang See e.g., Macias no role in the offense. See Macias v. State, 959 S.W.2d App. —– Houston S.W.2d 332 (Tex. App. Houston [14 th

[l4“‘ 1997) and cf.

Dist.] 1997) cf the unpublished opinion of Ojeda v. of v. State, 2004 App.—El Paso, September 24, 2004, pet.

WL2l37653, (Tex. App.—El

2004 WL2137653, pet. Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of

v. The ofTexas

Brief of Appellant l6 ref’d, 2005 (not designated for ref’d, 2005 for publication) was publication) (gang-membership evidence was was not used as character conformity evidence) specifically linked to the case and was

Vasquez v. and Vasquez S.W.3d 229

v. State, 67 S.W.3d App. 2002).

229 (Tex. Crim. App.

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

Boswell’s gang affiliation affiliation was Value of the evidence. None was so prejudicial as to outweigh any probative value of the

None of pertinent factors cited above as dispositive of a Rule 403 analysis justify

Rule justify the admission of the offending evidence. Rather, the jury’s View during trial jury‘s view trial of of a man disrobed at the order of the trial court to expose his tattoos must have shirtless man on the jury. had a substantial impact on jury. Besides the obvious potential tendency to reflection on the import of such a display (after all, the distract the jury from a sober reflection had photos of the tattoos it State had shown the jury) the offending evidence it could have shown was a suggested a jury decision could rationally be based on the fact that Boswell was sufficiency of evidence adduced gangster as his tattoos indicated rather than on the sufficiency

To bolster that improper basis for the to prove his association with the robbery. To jury‘s decision, the State presented to jury’s to the jury an expert whose testimony about Boswell‘s Boswell’s gang involvement in general and in in Killen in was the in particular was centerpiece of the State‘s

State’s case. All of that evidence allowed the jury the opportunity when the jury undue weight when to give the testimony an inordinate, undue was not equipped jury was

S.W.3d at 210 S.W.3d to evaluate the probative force of the testimony. See Gigliobianco, 210 Cause No. 03-l5-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of

v. The ofTexas

Brief of Appellant l7 641-42. Considering the trial testimony about gangs in general, testimony about Boswell‘s Boswell’s relationship to to gang activity activity in in particular, particular, as as well as the accomplice which resulted testimony that Boswell, as the leader of the gang, planned the robbery which

Brandon’s death, there is in Brandon‘s is a clear disparity disparity between the danger of unfair prejudice

As a result, the from the complained-of testimony and its probative value. As resulting from trial trial court abused its its discretion by by overruling Boswell‘s Rule 403 objection to

Boswell’s Rule testimony concerning Boswell‘s

Boswell’s alleged gang affiliation.

HARM HARM

Where the trial court erred in admitting evidence of Boswell‘s Where Boswell’s gang affiliation, reversal is required, unless after examining the record, it it is determined that the error did not affect affect Boswell‘s

Boswell’s substantial rights. TEX. 4. APP. rights. TEX. PROC. 44(2) (b); King

APP. PROC. King v. 2d 266, 271 v. State, 953 S.W. 2d App. 1997).

271 (Tex. Crim. App. 1997). Substantial rights are not by the erroneous admission of evidence if, affected by if, after examining the record as a influence the jury, whole, a reviewing court has a fair assurance that the error did not influence jury, had but a slight effect. Solomon or had Solomon v. S.W.3d 356, 365 (Tex. Crim. App.

v. State, 49 S.W.3d 2001). In assessing the likelihood that the jury’s jury‘s decision was adversely affected by by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s jury‘s consideration, the nature of how the the evidence supporting the verdict, the character of the alleged error, and how Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of error might be considered in connection with other evidence in the case. See Motilla

S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v.

v. State, 78 S.W.3d S.W.3d

v. State, 63 S.W.3d 444-45 (Tex. Crim. App. 442, 444-45 The reviewing court should examine

App. 2001). The examine the entire much as possible, the probable impact of the error upon trial record and calculate, as much upon the rest of the evidence. Coble v. State, 330 S.W.3d 253 (Tex. Crim.

330 S.W.3d App. 2010);

Crim. App. Johnson 410 (Tex. Crim. App. 1998).

S.W.2d 410 Johnson v. State, 967 S.W.2d 1998).

A review of the evidence here indicates the admission of Boswell‘s A Boswell’s gang because: affiliation contributed to his guilty verdict. That follows because: affiliation

The State was

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

(2) The State

State emphasized Boswell‘s

Boswe1l’s gang affiliation affiliation in its closing arguments at nearly every opportunity. See, e.g.,

e. g., R.R. 7, pp. 33, 35, 36, 41, 44, 47, 48, 50 and 68;

The State elicited evidence from

(3) The from every one of of its witnesses that was affiliated

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

“Statement of Pertinent Evidence‖

Evidence” above; (4) The State‘s

State’s gang expert testified testified at at length about gangs in general and the Gangster Disciples specifically; specifically; how the G.D.‘s

G.D.’s and other gangs operated, with what how he determined that what criminal activities gangs were associated, and how Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of was not only affiliated with but the leader of the G.D‘s. Boswell was G.D’s. He also not only described various gang symbols and their meanings to the jury but pointed to tattoos on Boswell‘s

Boswell’s body that he said substantiated his claims after after the trial trial court had remove his shirt before the jury.

Boswell remove Bowman at R.R.

jury. See, testimony of John Bowman 6, 6, pp. 52 through 60 and State‘s

State’s Exhibits 41

41 through 46.

In sum, a great deal of the State‘s

State’s case against Boswell consisted of evidence concerning Boswell‘s Brandon’s gang affiliation and not the robbery that resulted in Brandon‘s Boswell’s gang was calculated to prejudice the jury against death. Presentation of that evidence was Boswell as a bad gangster, and as a result, that evidence likely affected his

At the very least, in light of the record as a whole, substantial rights to a fair trial. At no fair assessment that the error in admission of the offending evidence there can be no did not influence on their verdict. Solomon influence the jury or have but a slight effect on Solomon v. v. State, S.W.3d at 365.

49 S.W.3d

TWO RESTATED

ISSUE TWO 8. ISSUE RESTATED

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

Boswell’s motion for new on aaBrady5 based on when the prosecution failed to disclose a witness‘

Brady5 violation when witness’ history of reprimands while serving as a police officer. of officer.

THREE RESTATED ISSUE THREE 9. ISSUE RESTATED

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

Boswell’s motion for new on a Brady based on when itit was

Brady violation when shown that the prosecution failed to disclose was shown the disciplinary history of of a former police officer who testified testified as as the State‘s “gang

State’s ―gang expert‖ expert” where showed the witness‘s where the records not only showed witness’s bias but offered substantial basis for impeachment.

STATEMENT OF STATEMENT EVIDENCE

PERTINENT EVIDENCE OF PERTINENT

In post-conviction proceedings, Boswell argued that the State had failed to disclose impeachment/bias evidence regarding its “gang expert‖ its ―gang expert” witness, John Bowman. Here, evidence is adduced related to both issues two Bowman. two and three.

Bowman, as noted above, testified Bowman, testified extensively about the Gangster Disciples and his findings

findings with regard to to Boswell‘s

Boswell’s involvement with and leadership of that that Bowman’s testimony was the last,

gang. (See, R.R. 6, pp. 26-79). Bowman‘s last, and arguably by the State. His testimony focused on the most damning, testimony presented by gang’s activities gang‘s activities in in Texas and in in Killeen in particular, as well as in particular, as Boswell‘s

Boswell’s alleged influence and power influence He testified that Boswell was power within the gang. He was not just just a member of of the gang but, but, in in fact, “Govemor” or boss of the Gangster Disciples fact, the ―Governor‖ in in Central Texas. (R.R. 6,

6, p.

p. 58). Bowman testified 58). Bowman testified that that ―these guys” have been

“these guys‖ much criminal activity as any ―organization involved in as much “organization in the history of Killeen.‖

Killeen.” Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell Boswell,

Boswell, Jr.

Jr. v. The State of (R.R. 6,

6, p.

p. 52).

52). He identified identified and interpreted Boswell‘s

Boswell’s tattoos after after the trial trial court remove his shirt before the jury during trial — ordered Boswell to remove – a not innocuous event when the State had photographs available for the jury’s jury‘s inspection. (R.R. 6, p. 54). Lastly, Bowman testified that he actually aided in the murder

Bowman murder investigation itself, and, as a result, he reported on statements he personally took from one of the participants in the robbery, Daniel Carruth (―D.C.‖) owner of the house

(“D.C.”) and from the owner where the planning for the robbery allegedly occurred, Timothy Skobel. where Skobel. (R.R. 6, pp. pp. 65-70).

During the hearing on Boswell‘s

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

(See, Defendant‘s

Defendant’s Motion Exhibit A, C.R. 1, pp. 87, 96-123). That information had not been provided to 1, to Boswell‘s

Boswell’s counsel. Bowman mentioned those disciplinary actions during his testimony in

Neither had Bowman trial. Finally, he acknowledged that the disciplinary actions were were omitted from his when the State presented him curriculum vitae (c.v.) provided to the jury when him as an “expert” on gangs and gang activity. ―expert‖ activity. (See, R.R. 6,

6, p.

p. 27 (State‘s

(State’s Exhibit 36) and Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell Boswell,

Boswell, Jr.

Jr. v. ofTexas v. The State of

Defendant‘s Motion (Exhibit B) Defendant’s Motion B) (C.R. 1,

1, p. 125)).

125)). Boswell argued that the omission of of that Bowman’s c.v. that information from Bowman‘s c.V. and the State‘s

State’s failure failure to to disclose the information before trial constituted violations of Brady

Brady and the dictates of its progeny including Kyles v. Whitley, US. 419

Whitley, 514 U.S. 419 (1995) and Giglio v. U.S., 405 U.S. 150, 31 L.Ed.2d 104 150, 92 S. Ct. 763, 31 Had the defense had

104 (1972). Had had this information, Boswell‘s Bowman’s credibility

Boswell’s counsel argued, Bowman‘s credibility could have been shown to the jury. impeached and his bias shown jury. (R.R. 9, pp. 44-46). However, after hearing testimony and argument of counsel, the trial trial court denied Boswell‘s

Boswell’s motion new trial. (R.R. for new (RR. 9, p. 32).

APPLICABLE LAW —– NEW APPLICABLE LAW TRIAL

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

TEX. R. APP. articulated in TEX. “when the verdict

APP. P. 21.3, including ―when Verdict is is contrary to to the law and the evidence.‖ evidence.” TEX. R .APP.

TEX. R “The trial

.APP. P. 21.3(h). ―The trial court retains the power to grant a new discretionary power TEX. R. new trial for any legal reason not listed in TEX. APP. P. 21.3.‖ APP. Vigil, No.

21.3.” State v. Vigil, 08-13-00273-CR, 2015

No. 08-13-00273-CR, WL 2353507, at *3

2015 WL *3 (Tex. App. — App. May 15,

– El Paso May pet.)(not designated for

15, 2015, no pet.)(n0t for publication). While ―[t]he publication). While “[t]he defendant need not establish reversible error as a matter of law before the trial court may exercise its may its discretion in in granting a motion for new trial trial (,)

(,) … trial trial courts do new trial unless the defendant demonstrates that not have the discretion to grant a new Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

flawed and that the flaws was seriously flawed his first trial was flaws adversely affected his trial.” Herndon substantial rights to a fair trial.‖ S.W.3d 901, 909 (Tex. Crim.

Herndon v. State, 215 S.W.3d App. 2007.

STANDARD OF STANDARD REVIEW— NEW

OF REVIEW— TRIAL

NEW TRIAL A reviewing court reviews the trial A trial court‘s court’s denial of a new trial trial for abuse of v. Herndon, discretion. State v. S.W.3d at

Herndon, 215 S.W.3d at 906. In reviewing that that denial, denial, ―[an

“[an appellate court] looks to the grounds pleaded by movant in the motion and by the movant new trial.‖ determines whether any of those grounds provide a basis for granting the new trial.” State v.

v. Fury, 186 S.W.3d 67, 73

186 S.W.3d — Houston

73 (Tex. App. – Houston [1 st

[l5‘Dist.] pet. ref’d).

2005,pet. Dist.] 2005, ref’d).

A trial A trial judge ―cannot

“cannot grant a new trial trial on mere sympathy, an inarticulate inarticulate hunch, or simply because he personally believes that the defendant is innocent or received a deal.” Herndon, raw deal.‖ marks omitted].

S.W.3d at 907 [Internal quotation marks Herndon, 215 S.W.3d

Instead, even where new trial on interest of justice grounds, ―[a] where a defendant urges a new “[a] new trial, whether for guilt or punishment, requires a valid legal claim.‖ motion for a new claim.”

S.W.3d 99, 107 Thomas, 428 S.W.3d

State v. Thomas, “To grant a new

107 (Tex. Crim. App. 2014). ―To new trial for a non-legal or legally legally invalid reason is discretion.” Hemdon, is an abuse of discretion.‖ Herndon, 215 S.W.3d at 907. While S.W.3d While the Court of Criminal Appeals has declined to set bright-line rules for the appellate courts to use in assessing whether the trial court abused its

TEX. R. APP. discretion on a ground not enumerated in TEX. APP. P. 21.3, the Court of of Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell Boswell,

Boswell, Jr.

Jr. v. ofTexas v. The State of “a trial

Criminal Appeals has suggested ―a trial court would not generally abuse its its new trial if discretion in granting a motion for new if the defendant: (1) articulated a valid new trial; (2) produced evidence or pointed to evidence legal claim in his motion for new showed prejudice to his in the trial record that substantiated his legal claim; and (3) showed

Rule 44.2 of the Texas Rules of substantial rights under the standards in Rule of Appellate Procedure.” Herndan, Procedure.‖ S.W.3d at 909.

Herndon, 215 S.W.3d APPLICABLE LAW —– BRADY APPLICABLE LAW VIOLATIONS

BRADY VIOLATIONS Due process requires prosecutorial disclosure of information material to guilt Due or innocence that is favorable to the defendant. Brady, 373 U.S. at 87-88, 83 S. Ct. would 1196-97. This rule recognizes the reality that suppression of such evidence would at 1196-97. give the State an unfair advantage in ―shap(ing)

“shap(ing) a trial trial that bears heavily on the defendant(;)‖ defendant(;)” the affirmative by Brady affirmative disclosure requirements imposed by Brady help to avoid ―casting

“casting the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.” justice.‖ Id. at 88, 83 S. Ct. at 1197.

1197. “A Brady ―A when the state suppresses, willfully or

Brady violation occurs when defendant.” Harm inadvertently, evidence favorable to a defendant.‖ Harm v. S.W.3d 403,

183 S.W.3d v. State, 183

406 A defendant states a proper Brady 406 (Tex. Crim. App. 2006). A Brady claim where: (1)

( 1) ―the “the State fails fails to to disclose evidence, regardless of the prosecution’s prosecution‘s good faith faith or bad faith;‖ faith;” (2)

(2) ―the

“the withheld evidence is is favorable to to him;‖ him;” (3)

(3) ―the

“the evidence is Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr. material, that is, is, there is a reasonable probability that had the evidence been trial would have been different[;]‖ disclosed, the outcome of the trial different[;]” and (4)

(4) ―the

“the evidence central to the Brady

Brady claim [is] court.” Pena

[is] admissible in court.‖ Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011). S.W.3d

“The state‘s ―The state’s duty to reveal Brady when the

Brady material to the defense attaches when information comes into into the state‘s state’s possession, whether or not the defense requested information.” Harm, the information.‖ Harm, 183

183 S.W.3d at “However, the state at 407. ―However, state is is not required to to appellant’s behalf, or furnish seek out exculpatory evidence independently on appellant‘s appellant with exculpatory or mitigating evidence that is fully

fially accessible to appellant from other sources.‖ Id. ―Favorable sources.” Id. “Favorable evidence is is any evidence that, that, if if disclosed and used effectively, may make the difference between may make between conviction and acquittal. It and impeachment includes both exculpatory and evidence.” Id. ―Exculpatory impeachment evidence.‖ “Exculpatory evidence which tends to justify, excuse or clear the defendant is testimony or other evidence which from alleged fault guilt.” Id fault or guilt.‖ “Impeachment evidence is

Id at 866-67. ―Impeachment is that which which is offered to dispute, dispute, disparage, deny, or contradict.‖ S.W.2d 864,

991 S.W.2d contradict.” Little v. State, 991

1999).

867 (Tex. Crim. App. 1999).

ARGUMENT ARGUMENT

In Boswell‘s Bowman admitted to the authenticity of

Boswell’s post-conviction hearing, Bowman of the records which formed the basis of the impeachment/bias evidence even as he Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell Boswell,

Boswell, Jr.

Jr. v. ofTexas v. The State of records. (R.R. tried to offer mitigation of his actions the subject of those disciplinary records. was also established in the hearing that the prosecution, 14-15). It was

9, pp. 14-15). however prosecution, however

(RR. impeachment/bias materials to the defense. (R.R. inadvertently, did not provide the impeachment/bias 9, pp. 40-41).

Brady Brady and its progeny such as Giglio require the state to disclose all material evidence that could exculpate the defendant, including evidence that could be used impeach any of the prosecution witnesses or undermine the prosecution‘s to impeach prosecution’s case. case. Those requirements are so well established that it Those it should have controlled the post- conviction court‘s court’s ruling on Boswell‘s

Boswell’s motion. Here, the records attached to to Boswell‘s Boswell’s motion for new trial Bowman’s personnel trial consisted of documents from Bowman‘s them prior to trial, he could have used to establish file which, had Boswell receive them bias on Bowman’s part

Bowman‘s part in in testifying testifying for the State.

State. Boswell showed, for example, that that Bowman‘s Bowman

Bowman’s curriculum vitae referenced a number of prior occasions Bowman

Bowman’s trial testimony in this case would had testified in gang-related cases; that Bowman‘s would

Bowman was pad that accomplishment, and, most importantly for showing bias, that Bowman was using that curriculum vitae to promote promote himself within the law enforcement field in efforts to land another job in law enforcement. enforcement. (R.R. 9, pp. With regard to pp. 26-28). With bias, a witness‘s bias, witness’s interest interest or motive to to testify testify is is a critical critical area of inquiry on cross- examination. Davis examination. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 1105, 39 L.Ed.2d 347 (1974). Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Bowman’s The records themselves included materials that undermined Bowman‘s veracity under oath because the disciplinary actions centered on misstatements of made to his superiors before his forced resignation. (R.R. 9, pp. 22- fact that he had made

Supreme Court has noted impeachment evidence, the United States Supreme

23). Concerning impeachment that, that, ―[t]he jury‘s estimate of the truthfulness and reliability

“[t]he jury’s reliability of may of a given witness may upon such subtle factors as the of guilt or innocence, and it is upon well be determinative of possible interest interest of of the witness in in testifying testifying falsely falsely that that a defendant‘s defendant’s life life or liberty depend.” Napue may depend.‖ may Napue v. Illinois,

Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1217

1173, 3 L.Ed.2d 1217 (1959).

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

Boswell’s motion new trial was for new was ―material,‖

“material,” (i.e., when viewed in light

(i. e., prejudicial to the defendant) when of of the other evidence presented at at trial. trial. Evidence is is deemed material ―only

“only if if there is a reasonable probability that, had the evidence been disclosed to the defense, the

A reasonable probability is a would have been different. A result of the proceeding would probability sufficient sufficient to to undermine confidence in the outcome.‖ outcome.” United States v. US The answer

481 (1985). The 105 S. Ct. 3375, 87, 87 L.Ed.2d 481

Bagley, 473 U.S. 667, 672, 105 would probably have to the materiality issue though is not whether the defendant would received a different verdict with the evidence,…―but evidence,...“but whether in its its absence he Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell Boswell,

Boswell, Jr.

Jr. v. ofTexas v. The State of received a fair trial, understood as a trial resulting in a verdict worthy of confidence.‖ confidence.” Kyles v. Whitley, 115 S. Ct. 1555,

Whitley, 514 U.S. 419, 434, 115 490 (1995).

131 L.Ed.2d 490 1555, 131 Evidence of Boswell‘s

Boswell’s actual involvement in the robbery came only from who each had accomplices who One witness, had a motive to testify favorably for the State. One Paul Sterling, “ordered” the robbery, but Sterling never

Sterling, claimed that Boswell had ―ordered‖ made that assertion in the initial statement he gave to police following his arrest. made arrest. (R. had still not been R. 5, p. 82). Further, at time of trial, Sterling had been charged with any had refused to participate in the robbery. (R.R. offense because, according to him, he had

Danny Carruth, a participant in the robbery, also testified 5, pp. 64, 68). Danny testified that Boswell was the G.D.‘s

G.D.’s leader who told him to to watch by by the door as three other robbers entered Arrington‘s

Arrington’s house to to rob him. (R.R. 5,

5, pp. 140,

140, 143).

143). Notably, despite his admitted participation Brandon’s death, Carruth had not participation in the robbery resulting in Brandon‘s murder at time of trial, and he admitted that he was been indicted for capital murder “hoping was ―hoping to to keep it it that way.” (R.R. 5, that way.‖ 5, p.

p. 154). 154). The last last witness for the State,

State, the icing on the State‘s State’s cake as as it it were, was Bowman, the State‘s

State’s gang expert. It Bowman who

It was Bowman provided a detailed analysis of the Gangster Disciples through the years, their gang signs and tattoos corporate structure, their criminal activities, their extensive gang damaging evidence as introduced in trial, a description of the G.D.s and, perhaps as damaging as the most gang in Killeen‘s most extensive criminal gang Killeen’s history. (R.R. 6, pp. 35, 58). Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr. Moreover, it Bowman whose was Bowman it was whose testimony bolstered that of members of the two gang members who whose interest and bias in favor of who testified and whose of the State was shown during was shown cross-examination. members’ testimony was crucial to proof of cross-examination. Those gang members‘ of Boswell‘s Boswell’s status status as as leader of the G.D. gang and of of his involvement in in the planning As a result, any evidence from any source that tended to corroborate of the robbery. As of or to bolster their testimony became crucial to to the outcome of of the State‘s

State’s case. case. Bowman’s testimony did not merely serve to provide insight into the gang‘s

Finally, Bowman‘s gang’s it also provided information to the jury different in kind to that of the activities, it State‘s State’s other witnesses because it it served to members’ allegations to buttress gang members‘ against Boswell and to to undermine the latter‘s latter’s attempts to to prove that the witnesses‘ witnesses’ him gave self-serving and biased testimony. against him

Johnson v. In the case of Johnson v. Mills, 592 F.3d 730 (2010), the court noted that jurors often have a negative predisposition toward informants. informants. ―Ordinary

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

Id. citing Stephen S. Troft, Words of Words Warning for of Warning Using Criminals as Witnesses, for Prosecutors Using Witnesses, 47 Hastings, L.J. Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell Boswell,

Boswell, Jr. 1391, 1395 1391, made

1395 (1966). In light of that, any evidence supporting such testimony is made more material. the more material.

In a case involving the exclusion of evidence of an officer‘s officer’s disciplinary record, In the Matter of C.F.C., the Court of Appeals held that exclusion of such

Matter of was not error. 1999 evidence in that case was WL 675440, Tex. App. —– San Antonio,

1999 WL

1999 (not designated for

August 31, 1999 for publication). publication). There, defense counsel learned had been reprimanded by during trial that a police officer had by his department. Counsel was admissible to impeach argued that the reprimand was impeach the officer and that the reprimand demonstrated bias and a motive to to fabricate portions of the officer‘s off1cer’s The appeals court disagreed, but it testimony. The it did so only after it it determined that which might of the incidents the subject of the reprimand which the probative value of establish bias or a motive to fabricate testimony was marginal. It reached that was marginal. conclusion because the incidents that led to the reprimands had, in fact, occurred after the offense the subject of its current trial. Thus, in that case, the court reasoned was not that whether the officer had been disciplined for violating police procedures was relevant to a motive for lying in the case before it. The relevance, the materiality of it. The of impeachment/bias evidence was, he court reasoned, at best only theoretical. the impeachment/bias

WL 675440 at *5.

C.F.C., 1999 WL 675440 *5.

Cause No. 03-l5-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

Jr. v. The State of

980 S.W.2d

In Saldivar v. State, 980 App. —

S.W.2d 475 (Tex. App. – Houston

Houston [14 th

[l4“‘ 1998,

Dist.] 1998, in a case where where defendant discovered an undisclosed conviction for a state‘s state’s witness, was of prior convictions was the court of appeals again found that undisclosed evidence of

The appellate court reached that conclusion, impeachment purposes. The immaterial for impeachment however, only after it was able to accomplish his goal to it determined that defendant was impeach the witness‘ impeach witness’ credibility by by using her prior inconsistent statements in lieu of of her convictions. evidence of

The of Appeals, in DeLe0n The Third Court of WL 3454101

DeLeon v. State, 2015 WL 3454101 (Tex. App. — May 29, 2015

– Austin, May November 18,

2015 (petition for discretionary review November 2015

18, 2015 (not designated for for publication)), publication)), found that the relevance for bias in the case before it it was ―not

“not plainly apparent.‖ apparent.” There, the court found that that the State‘s

State’s motivation for disclosing a recording to law enforcement did not have an effect effect on the jury’s jury‘s consideration. Apparently, the court reached that conclusion at least in part because, consideration. was able to challenge the witness‘ as its opinion noted, appellant was witness’ credibility in other ways.

Finally, in Milke

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

Ryan, 711 prosecutor‘s failure to disclose a key testifying Circuit Court of Appeals held that the prosecutor’s detective‘s “long history of lies detective’s ―long lies and misconduct‖ misconduct” violated appellant‘s appellant’s due process rights and reversed and remanded new trial. In that case, which remanded for new which noted inadvertent Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr. enough for a Brady failure to disclose is enough Violation (citing Kyles as well as Strickler

Brady violation

v. 119 S. Ct. 1936, v. Green, 527 U.S. 263, 119 1936, 144 287 (1999), the Court

144 L.Ed.2d 287 find that the jury would reiterated that it is not necessary to find come out would have come differently. differently. It

It suffices, suffices, the Court wrote, that that there is is a ―reasonable

“reasonable probability of a different result.‖ result.” Id. Where the State apparently deemed Where deemed testimony about the Gangster Disciples sufficiently worthwhile that it good deal of time in trial developing the it spent a good

Bowman was where Bowman evidence, and where was the sole source of most of that damning damning evidence, As a result, the conclusion more apparent. As the materiality of his testimony is even more cannot be reached beyond a reasonable doubt that the erroneous exclusion of the evidence did not necessarily contribute to to Boswell‘s

Boswell’s conviction; rather, rather, the of the admitted Brady evidentiary suppression of confidence in

Brady material undermines confidence the outcome of Boswell‘s

Boswell’s trial.

PRAYER 13. PRAYER

WHEREFORE, Larry Donnell Boswell, Jr. prays that this honorable court WHEREFORE, remand this cause for retrial in accordance with its findings reverse and remand findings herein and may justly be entitled. which he may for such other and further relief to which Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell

Donnell Boswell,

Boswell, Jr.

COPELAND LAW

COPELAND LAW FIRM

FIRM Box 399

P.O. Box

TX 78613 Cedar Park, TX 78613 Phone: 512.897.8196 Phone:

Fax: 512.215.8114 [email protected] Email: [email protected] Email:

By: /s/ Erika Copeland By:

Erika Copeland State Bar No. 16075250

No. 16075250 Attorney for Appellant

CERTIFICATE OF CERTIFICATE SERVICE AND

OF SERVICE OF

AND OF COMPLIANCE WITH RULE

COMPLIANCE WITH RULE 9 December 14,

This is to certify that on December copy of the

14, 2015, a true and correct copy

Bob Odom, was served on Bob document was above and foregoing document Odom, Assistant District Attorney of Bell County, P.O. BoxBox 540, Belton, Texas 76513, in accordance with the Texas Rules of Appellate Procedure, and that the Brief of Appellant is in compliance with Rule 9 of the Texas Rules of of Appellate Procedure and that portion which which must be included under Rule 9.4(i)(1) contains 7202 words. words. /s/ Erika Copeland

Erika Copeland Cause No. 03-15-00540-CR

No. 03-15-00540-CR Larry Donnell Boswell,

Boswell, Jr.