PRESERVING ERROR FOR APPELLATE REVIEW

by Joseph A. Connors III (Jan. 19, 2006)

Cerebrate by using your mind to prepare and know:
1. Rulings on evidence.  See Tex. Evid. Rule (TER) 103.
2. Preservation of complaints below.  See Tex.App.P.Rule (TRAP) 33.
3. Exclusionary rule.  See Texas Crim.P.Code (TCrPC) article 38.23.
4. Charging instrument error waiver under TCrPC art. 1.14(b).
5. Prepare all court's charges for not guilty and penalty phases.
6. Prepare special defense requests for court's charges.
7. Be ready to make final argument before trial starts.
8. Anticipate opponent's game plan.
9. Issues each side needs to prove?
10. Case's presentation issues' facts, law and exceptions.
11. Case's law to convict and defend.
12. Tear apart charging instrument:  limitations, exceptions, etc.
13. What charging instrument error should be challenged or amended?
14. What are the proper evidentiary predicates for those issues?
15. How will opponent make an adequate showing to prove case?
16. How will you make a convincing showing to win your case?
17. How to challenge presiding judge, witness, or opposing lawyer's improprieties?  
18. How to challenge systemic improprieties of grand jury system?
19. How to make and win change of venue motion?
20. Case's suppression issues' facts, law and exceptions.
21. What pretrial and in-trial suppression motions should be filed?
22. How to object properly under rules, statutes, and constitutions.
23. How to stop jury's use of evidence for substantive purposes?
24. Be ready to in-trial submit court's limiting jury instructions.
25. If court stops "show," record must show appeals court ....?

26. Upon exclusion, proponent proffers evidence jury missed?
27. Upon exclusion, tell trial court why you need omitted stuff.
28. After just above, ask now "elucidated" court to reconsider and admit.
29. This gives trial an court opportunity to correct error.
30. This give opposing party a chance to remove basis of objection.
31. How do you make trial court or opponent make error?
32. Raise, present, and obtain judicial determination of the issue.
32. How do you make record demonstrate trial court committed error?
33. How do you make record show the opponent team committed error?
34. How do you show trial court's error is not harmless?
35. List issues for individual venire member and group discussions in jury selection?
36. Let prospective jurors "show off" their opinions and biases on your case's problem issues.
37. Find out each prospective juror's "unchangeable opinions relevant to" your case.
38. Can seriously abused juror "judge" and "punish" one prosecuted with this crime?
39. Mitigating evidence about client for presentation at not guilty and penalty phases.
40. Losers appeal?  "No, winners create or demonstrate reversible error!"

Goal: counsel's constitutional assistance in "fighting action"
	In Escobar v. State, 28 S.W.3d 767, 781-782 (CA13 2000, pet. ref'd), the court said:

	The record shows that appellant's trial counsel filed pre-trial motions, made objections during the trial and the charge conference, vigorously cross-examined the State's witnesses, and set forth a plausible defense.  After reviewing the entire record, we hold appellant has not overcome the presumption of reasonableness.  We overrule appellant's first issue.
	In Solis v. State, 673 S.W.2d 270, 274-275 (CA13 1984), aff'd, 718 S.W.2d 282 (TCrA 1986), the court said:  

A careful examination of the record shows that, in spite of the brief lapse of time between his appointment and the hearing, counsel for appellant had a firm command of the facts involved.  His cross-examination of the State's witnesses, as well as his direct examination of appellant, demonstrated an understanding of the issues and surrounding circumstances.  The preparation and filing of the motion to quash and all the conduct of appellant's counsel satisfies us of his effectiveness.  He seems to have followed, not only at the trial but also at the appellate level, that well know adage:

"When you have the facts, argue the facts; when you have the law--argue the law--if you have neither the facts or the law, pound on the table and recite the constitution."
Reality:  some attorneys are sometimes imperfect
	In Silguero v. State, 2005 Tex.App. LEXIS 9876 (CA13, __ pet. __), the court said:

	In issue twenty-one, appellant argues he was denied effective assistance of counsel when his counsel failed to timely present his motion for new trial.  However, appellant cites no authority or references to the record in support of this argument.  Therefore, we conclude he has inadequately briefed this sub-issue.	
	In Heidelberg v. State, 144 S.W.3d 535 (TCrA 2004), the court held that appellant did not preserve error on any of the grounds he presented on review due to:  (1) the lack of time-specific questions by the prosecutor; (2) counsel's failure to cite to the state constitution or even specify that he was objecting to post-arrest silence; and (3) the lack of commentary by the judge in making his rulings on the objections.
	In Loredo v. State, 1999 Tex.App. LEXIS 5300 (CA13, no pet.), the court found of concern were:  (1) Ramos' hearsay testimony that appellant pointed a gun at his children; (2) the admission of the prior conviction without establishing a connection to appellant; and (3) the failure of the jury charge to include a reasonable doubt instruction under TCrPC art. 37.07, § 3(a) as to the extraneous crimes the State presented during the penalty phase.  See Mitchell v. State, 931 S.W.2d 950, 954 (TCrA 1996).  Each of these individually would not suffice to establish counsel's ineffective assistance.  "Collectively, however, we cannot say that trial counsel through these actions rendered reasonably effective assistance or that appellant was not prejudiced by counsel's errors."   Together they may have influenced the jury's decision to sentence appellant to life imprisonment rather than a lesser term of years.  "Even considering the totality of representation, we conclude appellant did not receive reasonably effective assistance of counsel in the punishment phase."  The COA affirmed the trial court's judgment of conviction but reversed the trial court's judgment as to punishment only and remanded for a new punishment trial.
	In Hutchison v. State, 1999 Tex.App. LEXIS 8476 (CA13, pet. ref'd), the court said that "A criminal defense lawyer must have a firm command of the facts of the case as well as the governing law before he can render reasonably effective assistance of counsel."  The COA held that at the hearing on the motion for new trial, defendant had not proven himself to be entitled to the defense of "ultimate user" he claimed under Health and Safety Code §§ 481.062(a)(3), 481.0002(24) ("lawful possession") & 481.002(48) ("ultimate user"); see Wright v. State, 981 S.W.2d 197, 200 (TCrA 1998); see also 21 U.S.C. §§ 844, 8092(21), 952-956.  With regard to both the July 1st and the July 22nd offenses, the ultimate user defense would only apply if Hutchison could prove that he legally obtained prescriptions for the drugs from a Mexican physician.  Defendant's affidavit and testimony at the hearing on the motion for new trial contradict his stipulations at guilty plea hearing about the manner in which he obtained the prescriptions.  With regard to the July 1st offense, Hutchison does not dispute that he failed to declare the drugs to U.S. Customs officials and thus he did not comply with the applicable federal regulations under 21 C.F.R. § 1301.26.  Additionally, at the hearing for new trial defendant never testified that he specifically told his attorney that the representations in the investigation report were false or that he claimed to have obtained the prescriptions legally from a Mexican physician.     
State's normal position on appeal
	In January v. State, 732 S.W.2d 632 (TCrA 1987), when the State contested preservation of and alleged waiver of error, and also contested the merits of the COA's opinion on the resolution of the jeopardy issue, the court said:  "We have reviewed that part of the Court of Appeals' opinion dealing with the merits of the jeopardy issue and find it to be sound.  ***  We therefore adopt that part of the opinion as our own, without further comment."
Review unavailable if issue not preserved in trial court	
	In Reyes v. State, 741 S.W.2d 414, 420-421 (TCrA 1987), the court noted that the COA did not observe the difference between the objection offered at trial and the one presented on appeal.  The issue on appeal must be the same as the objection raised at trial.  Nothing is presented for review if the objection at trial is not the same as that urged on appeal.  Insofar as the issue on review differs from the issue on appeal and the objection at trial, the issue on review was improvidently granted. 
	In Cisneros v. State, 692 S.W.2d 78, 82-83 (TCrA 1985), the court said any error in the examination of witnesses or admission of evidence is not preserved for appellate review absent a timely and specific objection at trial.  When an objection is made, it must not only identify what is objected to but must set forth grounds for the objections.  Error, if any, is not preserved for review in the absence of a specific objection to the particular question involved, even though the defendant subsequently may have made a general objection to all such lines of questioning.
	In Bustamonte v. State, 653 S.W.2d 846, 850 (CA13 1982), pet. dism'd as improvidently granted, 702 S.W.2d 193 (TCrA 1985), the court said that appellant's thirteenth and fourteenth grounds of error concern the trial judge's reference during sentencing to appellant's never having admitted his guilt and to the prosecutor's reference to the extraneous offenses during the same hearing.  "No objection was made to either reference.  Nothing is presented for review."	
Motion to quash
	In State v. Moff, 154 S.W.3d 599 (TCrA 2004), the court held that the trial court did not err in quashing the indictment, for the state failed to provide sufficient notice to inform the accused of the specific acts of "reckless" misapplication of fiduciary property over the seven years, for which he was charged, specifying which purchases were alleged to be unauthorized.
Motion to Suppress  	
	In Miller v. State, 736 S.W.2d 643, 648 (TCrA 1987), the court noted that the burden on justifying a contested arrest lies on the State.  If the State intends to justify the arrest on the basis of a warrant, it is therefore incumbent upon the State to produce the warrant "for inspection of the trial court for determination of its sufficiency."  Once the warrant and the supporting affidavit are produced by the State and "... exhibited to the trial court ...," it is the responsibility of the defendant to see that the warrant and the supporting affidavit are in the record if they are to be reviewed on appeal.  Consistent therewith, the appellant introduced into evidence [Cerda's] affidavit that he was attacking and had it included in the record on appeal.  It was not incumbent upon appellant to introduce into evidence other statements because it is evident from the record that they were "... not exhibited to the trial court for a ruling...."
	In State v. Montgomery, 972 S.W.2d 872 (CA13 1998, no pet.), in spite of the officer's testimony, after viewing the defendant's testimony in the light most favorable to the ruling below, the COA found the trial court did not abuse its discretion in granting the motion to suppress based on the illegality of the warrantless stop and arrest.
	In State v. Gonzalez, 2004 Tex.App. LEXIS (CA13, no pet.), the court explained that there is no evidence in the record that appellee was told what the officers were searching for.  "We hold that a reasonable person would not view consent to 'look inside and look around' the truck's tractor as conveying permission to enter the truck with tools to break open hidden compartments."  A COA must sustain the trial court's ruling if it is "'reasonably supported by the record and is correct on any theory of law applicable to the case.' ***  We hold that the search conducted by the officers exceeded the scope of Gonzalez's consent....  Accordingly, we overrule appellant's issue and affirm the trial court's order granting the motion to suppress."
Jury selection  
	In Rich v. State, 160 S.W.3d 575 (TCrA 2005), the court said:

During voir dire, the trial judge denied Rodney Rich's request to ask a proper question of the venire.  In assessing harm, the Court of Appeals relied on the test for individual voir dire examinations.  We conclude that this test does not apply when voir dire is conducted in a group setting rather than individually.
	In Loredo v. State, 59 S.W.3d 289 (CA13 2001, no pet.), the court held defendant had a right to question each venire person's ability to follow the court's charge on parole law under TCrPC article 37.07, § 4, and there it was reversible error to deny that inquiry, for in his brief, appellant, who received a life sentence, claimed every serving juror was biased against parole. 
Q1. Should defense counsel have to so assert harm in trial court?
A.  That sure is the best way to do it.
Q2. Was Loredo's rule implicitly changed by Gonzales v. State, 994 S.W.2d 170, 171 (TCrA 1999) (impermissible exclusion of proper question during jury voir dire is subject to harmless error review under TRAP 44.2(b)).
A.  Yes, maybe:  harmless to exclude this inquiry in Jones v. State, 2005 Tex.App. LEXIS 10234 (CA1 12/08/05, __ pet ___).
"Rule" violated by defense witness
	In Madrigal Rodriguez v. State, 749 S.W.2d 576 (CA13 1988, pet. ref'd), the court affirmed the judgments of conviction of two aggravated assaults and 10 years in prison for each offense to run consecutively, after saying:
 
	When the trial court ruled that the witness would be allowed to testify, evidence had been presented that the witness had talked to appellant about the case.  In addition, appellant made no specific objection to the trial court's ruling but now raises a series of specific points of error relating to the exclusion.  Generally, a specific objection pointing out reasons for error is necessary to preserve error.  Zilender v. State, 557 S.W.2d  515 (Tex.Crim.App. 1977).  In addition, the point of error presented on appeal must comport with the specific objection voiced at trial.  (Citation omitted.)  A defendant must object when the trial court excludes the testimony of one of his witnesses.  (Citation omitted.)  Since no specific objection was voiced at trial, the specific grounds raised on appeal have not been preserved for review.
Admitting and excluding evidence  
	In Russeau v. State, 171 S.W.3d 871 (TCrA 2005), the court reversed the sentence in a capital murder case, after holding the trial court erred in allowing the State to admit those portions of the county jail incident reports and TDCJ-ID disciplinary reports on defendant's conduct while incarcerated.  Those reports were inadmissible under the Confrontation Clause of U.S. Constitution Amendment VI, because the state did not show that the declarants were unavailable to testify and defendant never had an opportunity to cross-examine any of them.  Indeed the statements in the reports amounted to unsworn, ex parte affidavits of government employees and were the very type of evidence that Clause was intended to prohibit.  Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).  There, the Court held that the "right ... to be confronted with the witnesses against him" is a procedural guarantee that bars the admission of testimonial statements of a witness who does not appear at trial unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine him.  Id. at 59.  Generally speaking, a statement is "testimonial" if it is a solemn declaration made for the purpose of establishing some fact.  Id. at 51.  
	When reviewing a trial court's decision to admit or exclude evidence, this is the COA's standard of review:  it must afford a trial court great discretion.  See Montgomery v. State, 810 S.W.2d 372, 378-379 (Tex.Cr.App. 1990).  
	In In re U.G., 128 S.W.3d 797, 799-800 (CA13 2004, pet. denied), the court explained that a trial court has broad discretion in determining the admissibility of evidence, and its rulings on a motion to suppress will not be set aside without a showing of abuse of discretion.  Only when the trial court's decision is so wrong as to lie outside the zone of reasonable disagreement will the decision be reversed.  Because after detaining and arresting this juvenile the police officers failed to comply with the requirements of family code § 52.02 that a person taking a child into custody must immediately bring that child to a designated juvenile processing office or to one of several listed alternative sites, the statement that was obtained from appellant by the investigating officer that night violated his rights as a juvenile under the family code.  Any violations of the family code renders evidence subsequently obtained from the child inadmissible at trial.  See id. § 54.03(e).  The trial court abused its discretion in allowing the statement of appellant to be used against him at trial.  The COA must next determine whether that error constitutes reversible error.  TRAP 44.2 outlines the standard of review for reversible error in criminal cases.  "We employ the criminal standard of reversible error in this juvenile delinquency proceeding ...."  According to TRAP 44.2(a), the COA must reverse a judgment based on an error such as this unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment of the defendant.  "Because the error was harmless, we overrule appellant on this issue."  Id.
Backdoor Hearsay (information from unsworn, out-of-court sources)
	In Schaffer v. State, 777 S.W.2d 111, 114 (TCrA 1989), the court said that "To regard the testimony in any other manner is disingenuous ...."  There, TCrA affirmed opinion of COA reversing defendant's conviction, for trial court should have sustained defendant's hearsay objection where the state introduced Segovia's testimony for no other reason than to inferentially prove Seals told deputy Segovia that the defendant was not an informant.  "Seal's out of court, implied statement was offered for its truth and was therefore hearsay."  In short, "statement" as defined in Tex.Cr.Evid.R. 801(a) necessarily includes direct or indirect proof of the statement.  Introduction of that hearsay affected "a substantial right" of defendant and mandated reversal of his conviction.  Tex.Cr.Evid.R. 103(a).  Defendant's contention that he was an informant was essential to resolution of the case, and he was entitled to have that issue fairly litigated before the jury.  In Schaffer v. State, 721 S.W.2d 594, 596 (CA13 1986), aff'd, 777 S.W.2d 111 (TCrA 1989).  That COA opinion clarified that the trial court charged the jury in the nature of a theory of affirmative defense:  it states that if the jury believes defendant was working as an informant, or has a reasonable doubt thereof, then the jury will return a not guilty verdict, since a defendant's conduct cannot constitute the crime of intentional or knowing possession of a controlled substance if he was, or reasonably believed himself to be, working as an informer for a law enforcement officer.   
Q.	Is statement elicited to prove the truth of the matter asserted by a non-witness? 
A.	If yes, that makes it hearsay.
Cross-examining state's witness
	In Garcia v. State, 1997 Tex.App. 4481 (CA13, pet. ref'd), the court said:

	If an attorney has reason to believe that he can establish the truth of the allegations raised in his questions, he may ask the witness such questions on cross-examination; but the attorney may not ask prejudicial questions of a hostile witness when he knows that there exists no foundation for such questions.  Here, absent some articulable and reliable evidence to show the existence of the alleged conversation between Maestas and Valencia, the trial court's exclusion was proper, where Garcia claimed that his foundation for asking such questions could not be revealed because it was protected by the attorney-client privilege.  The potential of such questions to harass the witness, to prejudice the State by the indirect introduction of a hearsay confession by a third party, and thereby to confuse the issues, weighs heavily against admitting such testimony.
Cross-examining defendant:  it is subject to the trial court's sound discretion
	In Reyes v. State, 741 S.W.2d 414, 420-421 (TCrA 1987), the court said that when an accused voluntarily elects to so testify, he occupies the same position and is subject to any legitimate cross-examination within the rules of evidence as any other witness.  He may be contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matters, and treated in every respect as any other witness, except where there are overriding constitutional or statutory provisions. 
	In Cisneros v. State, 692 S.W.2d 78, 83-84 (TCrA 1985), the court said that it is a general rule of evidence that the prior silence of a witness as to a fact to which he has testified, where such silence occurred under circumstances in which he would be expected to speak out, may be used to impeach the witness during cross-examination.
	In Ayers v. State, 606 S.W.2d 936 (TCrA 1980) (reh. op.), the court held that where the defendant's trial testimony that he acted in self-defense and that he blacked out was inconsistent with his prearrest statement, wherein he failed to assert those facts, the prosecutor could properly test defendant's credibility by pointing out the inconsistencies without violating defendant's right to self-incrimination.
	In Marshall v. State, 471 S.W.2d 67 (TCrA 1971), the court held the impeachment of the defendant was proper and not in violation of U.S. Constitution Amendments V and XIV, when defendant waived his right to remain silent at trial and testified the homicide involved was an accident.  He was thus subject to impeachment regarding his previous silence, and interrogation by the prosecutor as to any failure to tell police there was an accident, was proper as long as that failure to talk did not appear to relate to a time when defendant was under arrest.
Double Jeopardy
	In Ex parte Goodman, 152 S.W.3d 67 (TCrA 2004), the court held that defendant's prosecution would not offend double jeopardy principles provided the state, in its current prosecution of appellant for aggregated theft, may prove any number of the aggregated theft's constituent thefts.  However, consistent with the double jeopardy clause, the state may not attempt to re-litigate the facts underlying the theft alleged in the first indictment in an effort to prove that the offense or any of its lesser included offenses is one of the aggregated theft's constituent thefts.  
	In Saenz v. State, 166 S.W.3d 270 (TCrA 2005), the court held the Double Jeopardy Clause of the Fifth Amendment was violated when the state charged appellant with three separate counts of capital murder under Texas Penal Code (TPC) § 19.03(a)(7)(A), because the charges rely on the same three murders for each charge. 
	In State v. Aquilera, 165 S.W.3d 695 (TCrA 2005), the court held that in an aggravated sexual assault case, the trial court acted within its authority when, only a few minutes after it had initially sentenced defendant and before it had adjourned for the day, it reduced defendant's sentence, and the reduction comported with TCrPC art. 42.09, § 1.
	In Harris v. State, 153 S.W.3d 394 (TCrA 2005), the court found that the second attempt at sentencing violated defendant's rights under the double jeopardy clause.  Because the 10-year sentence was a valid and authorized sentence under the Penal Code, the trial court's second pronouncement of a 25-year sentence the following day was an unconstitutional 15-year increase.
	In Ex parte Alaniz, 931 S.W.2d 26 (CA13 1996, no pet.), the court reversed the trial court's denial of the writ of habeas since appellant could not be retried for intoxication manslaughter after jeopardy attached when in open court she pled no contest to the charge.  Her community supervision sentencing concluded the case's prosecution.  Her sentence began the day it was pronounced.  After she had begun on weekends to serve some of the imposed 120 days in jail, the trial court granted the State's motion to reconsider sentence, withdrew appellant's plea of no contest, and set the case for new trial.  The COA held that the trial court violated appellant's right not to be put in jeopardy twice for the same offense.
	In Ruiz v. State, 2003 Tex.App. LEXIS 8716 (CA13 2003, pet. ref'd), the court noted Ruiz failed to make a timely request, objection, or motion before the trial court on the issue of double jeopardy.  See TRAP 33.1.  But in analyzing whether a violation of the prohibition against double jeopardy is apparent from the record, the COA discussed indecency with a child by contact was held to be a lesser included offense of aggravated assault in Ochoa v. State, 982 S.W.2d 904 (TCrA 1998) (conviction of both those there was a violation of the double jeopardy prohibition), where the evidence showed defendant sexually assaulted a child by penetrating the anus, but there was no proof of other offenses.  Id. at 907-908.	
	In King v. State, 174 S.W.3d 796, 817-819 (CA13 2005, pet. filed), the court explained that although an appellant has the burden to preserve, in some fashion, a double jeopardy objection at or before the time the charge is submitted to the jury, Gonzalez v. State, 8 S.W.3d 640, 642 (TCrA 2000), a double jeopardy claim may be raised for the first time on appeal, or even for the first time on collateral attack, when:  (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record; and (2) enforcement of usual rules of procedural default serves no legitimate state interest.  Id. at 643.  Under Gonzalez, "if a double jeopardy violation is clearly apparent, the defendant will prevail on appeal; if a double jeopardy violation is not apparent, defendant's claim fails on the merits regardless of whether he objected at trial.  Jimenez v. State, 67 S.W.3d 493, 509 (CA13 2002, pet. ref'd)."  Then the COA analyzed if a violation of the prohibition against double jeopardy is apparent from the record.
Right to jury instruction
	In Martinez v. State, 736 S.W.2d 233, 234-237 (CA13 1987), pet. dism'd as improv. granted, 810 S.W.2d 405 (TCrA 1991), the court said that a requested charge is sufficient under TCrPC art. 36.15, if it calls the trial court's attention to an omission in the charge; and an objection that misstates the law and impermissibly comments on the weight of the evidence is sufficient if the trial court understands the objection to the proposed charge.  After the jury charge gave an abstract instruction on the law of parties, its application portion made no reference to whether appellant acted alone or as a party, but simply tracked the language of the indictment charging only appellant as the shooter.  The COA held that the trial court reversibly erred in denying the imperfectly drawn requested charge #1 that adequately applied the law of parties to the facts of the case, and preserved defendant's complaint that the court's charge failed to apply the law of parties to the case facts.  That request #1 read:

	The mere presence of defendant, Emeterio Martinez, at the shooting, if any, would not constitute him a party to the offense charged, and if you should find from the evidence beyond a reasonable doubt that Rodolfo Morales, did then and there intentionally or knowingly kill the said [victim], by shooting her with a gun, as aforesaid, but you further find and believe from the evidence, or you have a reasonable doubt thereof, that the defendant Emeterio Martinez, did not act with intent to promote or assist the commission of the said offense of shooting and killing [the victim], if any, by encouraging, soliciting, directing, aiding, or attempting to aid Rodolfo Morales, in the commission of said offense, then you will find defendant Emeterio Martinez, not guilty of murder.
Given that the circumstantial evidence is at least as consistent with Morales being the actual murderer as with defendant and the record evidence did not demonstrate that defendant fired the fatal shot or shots, the charging error created "some harm" to defendant under Almanza v. State, 686 S.W.2d 157, 171 (TCrA 1985) (reh'g op.).  The court's charge was not sufficient to require the jury to find whether Morales caused the death of the deceased by shooting her with a firearm, and whether defendant was criminally responsible as a party for the acts of Morales.  As such, reversible error occurred.  
	In Hinojosa v. State, 744 S.W.2d 319, 322-323 (CA13 1988, pet. ref'd), the court said that the evidence against defendant was substantial, but could not say that he suffered no harm by the trial court's failure to charge the jury in accordance with appellant's request on self-defense against multiple assailants, for in Arline v. State, 721 S.W.2d 348, 351 (TCrA 1986), the court said that the presence of any harm, regardless of degree, which results from preserved charge error, is sufficient to require a reversal of the conviction.  
	In Szumny v. State, 1999 Tex.App. LEXIS 7277 (CA13, pet. ref'd), the court recited that when evidence from any source raises a defensive issue and the defendant properly requests a jury charge on that issue, the trial court abuses its discretion if it refuses to submit the requested instruction.  See Muniz v. State, 851 S.W.2d 238, 254 (TCrA 1993).  "If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted."  TPC § 2.03(d).  It is then the jurors' duty, under proper instructions, to determine if the evidence is credible and supports the defense.
	In King v. State, 174 S.W.3d 796, 812-815 (CA13 2005, pet. filed), the court said that an accused has the right to an instruction on any defensive issue raised by the evidence, whether the defense is inconsistent with other defenses and whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense.  The COA explained that preservation of charge error does not become an issue until the COA assesses harm.  The COA reviews alleged charge error by answering two questions:  (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal.  The burden lies with the appellant to persuade the reviewing court the error was harmful.  If appellant is unable to do so, the error will not result in reversal.  The degree of harm necessary for reversal depends on whether the appellant preserved the error.  Almanza v. State, 686 S.W.2d 157, 171 (TCrA 1984) (reh'g op.).  Under the Almanza standard for preserved error, not TRAP 33.1, the record must show that a defendant has suffered "some" actual rather than merely theoretical, harm from jury instruction error.  Posey v. State, 966 S.W.2d 57, 60 n. 5 (TCrA 1998) (trial judge has no duty to sua sponte give charge on defensive issue; if defendant does not request one, and does not object to its omission, there is no error and Almanza test is not applied).  Errors that result in "egregious" harm are those that affect "the very basis of the case," "deprive the defendant of a valuable right," or "vitally affect a defensive theory."  Id.  Under Almanza, to determine whether the error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine (1) the entire jury charge, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information in the record.  Id.
	In Escobar v. State, 28 S.W.3d 767, 776-778 (CA13 2000, pet. ref'd), the court noted that "The function of the jury charge is to instruct the jury on the law applicable to the case", and explained that TCrPC art. 36.19 and Almanza v. State, 686 S.W.2d 157, 171 (TCrA 1984), teach that if the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is "calculated to injure the rights of defendant," which means no more than that there must be some harm to the accused from the error.  In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.  On the other hand, if no proper objection was made at trial and the accused must claim that the error was "fundamental," he will obtain a reversal only if the error is so egregious and created such harm that he "has not had a fair and impartial trial"--in short "egregious harm." ****  "Because the intent element of 'intentionally or knowingly' is required to convict a defendant of aggravated robbery, we hold the trial court committed error by omitting this language."  See TPC §§ 29.02, 29.03 (1994).  This failure is merely a "technical violation of [a] state-law rule" and cannot amount to a federal constitutional error unless "there is a reasonable likelihood that the jury understood the instructions to allow conviction on proof insufficient to meet the Winship standard."  Victor v. Nebraska, 511 U.S. 1, 6 (1994) (referring to In re Winship, 397 U.S. 358 (1970) (due process clause requires proof beyond a reasonable doubt to establish guilt of a criminal charge; the prosecution must convince the trier of fact of all essential elements of guilt)).  "We hold appellant's federal constitutional right to due process was not violated.  We overrule appellant's third issue."
	In Solis v. State, 2000 Tex.App. LEXIS 5160 (CA13, pet. ref'd), the court held that:  "By neither requesting an instruction to disregard his failure to testify nor objecting to the omission of such instruction, appellant waived the right to the instruction."  See Brown v. State, 6178 S.W.2d 234, 238 (TCrA 1981) and Beathard v. State, 767 S.W.2d 423, 432 (TCrA 1989), which held that at the penalty and guilty phases, "A criminal defendant is entitled to have the jury instructed to disregard his failure to testify, provided the defendant requests such an instruction or objects to its omission."
Jury instruction 
	Over defense objection, the trial court reversibly submitted a charge to the jury to answer "yes" or "no" that varied from the State's petition and denied the juvenile a fair trial.  L.G.R. v. State, 724 S.W.2d 775 (Tex. 1987) ("It is in the public interest that the courts of this state insure that in any proceeding in which a child is exposed to the risk of loss of liberty the notice requirements mandated by the legislature in juvenile delinquency proceedings be observed."
	In Bermudez v. State, 878 S.W.2d 227, 229-230 (CA13 1994, no pet.), "outcry testimony" was admitted pursuant to TCrPC art. 38.072, § 2(b)(2) as substantive evidence, Villalon v. State, 791 S.W.2d 130, 135 (TCrA 1990).  But the COA held the evidence insufficient to support indecency conviction for the child, who recanted soon after defendant's arrest, only testified she accidently saw defendant's "private parts" when she tripped over his bed sheet.  That child's mother also recanted the contents of her own earlier recitations to the officer of the out-of-court "outcry" statements she had heard her daughter make.  The mother's testimony of the "outcry" statement, not only failed to support the conviction, but directly repudiated the State's case.  There, acquittal resulted, for without State's objection, the trial court submitted to the jury this impeachment limiting charge:
  
	You are further instructed that a witness may be impeached by showing that he or she made other and different statements from those made at the time of the trial.  Such impeachment evidence may be considered by you in determining the weight and credibility to be given the testimony of the witness at the time of the trial; however, such impeachment evidence, if any, is not to be considered by you as any evidence to establish the guilty of the Defendant, if any.

	Therefore, you are instructed that, other than Defendant's Exhibit 1, the other out of court statements of Monica Luisa Morales and Irasema Morales were admitted in evidence for the limited purpose of impeaching the said witness, Monica Luisa Morales and/or Irasema Morales, and you cannot consider said statements as evidence to establish the guilt of the Defendant.
Unanimous Jury Verdict
	In Ngo v. State, 175 S.W.3d 738 (TCrA 2005), the court held that defendant was deprived of his rights under the Texas Constitution and statutes, which require an unanimous jury verdict, when the court's charge and jury verdicts did not require that the jurors unanimously agree upon any one of the State's three alternative theories for prosecuting these acts:  stealing the credit card; receiving the credit card knowing it was stolen and intending to use it fraudulently; and fraudulently presenting the credit card with intent to obtain a benefit.  The court found that the trial court reversibly erred in not requiring the jury to unanimously agree that the defendant committed at least one of those three different alleged acts in that prosecution for credit card abuse.
  	In Hisey v. State, 161 S.W.3d 502 (TCrA 2005), the court found that in neither the jury instructions nor the verdict form was the jury instructed that it must unanimously agree upon any one of the three different criminal acts--murder of mother, murder of father or murder of both but not pursuant to a single scheme--to convict appellant of the lesser offense to the capital murder being prosecuted.  The jury found defendant guilty of murder.  The court held that in violation of the Texas Constitution's and TCrPC's requirements for a unanimous jury verdict in felony cases, the court's charge erroneously allowed for a non-unanimous jury verdict.
Sufficiency of the evidence on appeal
	When a general verdict is returned and the evidence to support a finding of guilt under any of the paragraph allegations submitted, the verdict will be upheld.  Fuller v. State, 827 S.W.2d 919, 931 (TCrA 1992), cert. denied, 509 U.S. 922 (1933).
	In Martinez v. State, 1999 Tex.App. LEXIS 944 (CA13, no pet.), the court found there was no evidence defendant participated in the murder in any way except to the extent that he helped dispose of the body.  Concluding that the evidence was legally insufficient to support appellant's conviction, the COA reversed the trial court's judgment of conviction and nine years in prison and rendered a judgment of acquittal, after saying:  "Bare conclusory allegations to the effect that the investigating officer has reason to believe that the defendant committed the offense are insufficient even to show probable cause, much less to convince a jury of the defendant's guilty beyond a reasonable doubt."
Right to reopen case
	In Hertz v. State, 2000 Tex.App. LEXIS 8640 (CA13, pet. ref'd), the court addressed whether the trial court improperly excluded evidence when it denied defendant's request to reopen under TCrPC art. 36.02 (1981) and present to the jury testimony about the defense of mistake of fact.  The decision to reopen a case is left up to the trial court's discretion.  A trial court abuses its discretion if it refuses to reopen a case when:  (1) the witness is present and ready to testify; (2) the request to reopen is made before the charge is made to the jury and final arguments are made; (3) the judge has some indication of what the testimony will be, that the testimony was material to the resolution of disputed issues and bore directly on the main issues in the case; and (4) there was no showing that the introduction of testimony would have impeded the trial or interfere with the orderly administration of justice.  Here, the trial court did not abuse its discretion because the proffered testimony was not material to the resolution of disputed issues.  Under the liberal definition of "owner" in the penal code, Curry was the owner of the diamond.  See TPC § 1.07(a)(35(A) (1994).  Appellant had an ownership right in the diamond while serving as a bailor for the purpose of taking it to an auction house in Dallas.  Appellant illegally appropriated the diamond from Reyes when he pawned it, without Reyes' consent, to Curry.  Even if Curry's possession of the diamond was based on an allegedly usurious loan, appellant lost his legal right to possession of the diamond after he pawned it to the alleged loan shark because at that point Curry had the greater right of possession of that property than the party who illegally appropriated it for his own use.  Curry must be treated as the owner rather than appellant.  Id.; see Blackburn v. State, 44 Tex. 457, 462 (1876) (if goods are stolen from someone who does not actually own them, but does possess them, that individual retains a greater right of possession than a thief); see also State v. Pokini, 45 Haw. 295, 304, 367 P.2d 499 (1961) (a thief in possession of stolen property has an interest in the stolen chattels stronger than anyone other than the real owner of the property).  Thus, the trial court properly excluded the testimony of a local lawyer about his conversation in which he gave appellant legal advice that he had a right under the law to use self-help to regain possession of the diamond.  "The legal advice was incorrect."  Such testimony of "a bare assertion is not necessarily the naked truth."  The proffered testimony is therefore not material to the resolution of disputed issues because it would provide evidence that appellant had a mistaken belief not of fact, a defense under TPC § 8.03(a), but one of law, which is not a defense to prosecution.  TPC § 8.03 (1994). 
State's failure to have indictment amended
	In Cantu v. State, 1998 Tex.App. LEXIS 3544 (CA13, no pet.), both counts of the indictment were based upon the robbery of Manuel Leal Rios.  Before trial the State moved to amend under TCrPC art. 28.10, and leave was granted by the court to replace the surname "Rios" with the surname "Pena".  However, this was never done on the face of the indictment and the trial and its court's charge proceeded on the indictment as originally worded.  The COA reversed and ordered an acquittal on both counts of the indictment, for: 

 		If the failure to amend the indictment to reflect the correct name of the victim in count one of the indictment is reversible error, Montoya v. State, 906 S.W.2d 528 (Tex.Crim.App. 1995), then such failure in count two is also reversible error. 
Restricted time for final argument
	In Dang v. State, 154 S.W.3d 616 (TCrA 2005), the court said that in reviewing a trial court's determination of the length of arguments, the court should consider, but is not limited to, the following nonexclusive list of factors on a case-by-case basis:  1) quantity of evidence; 2) trial duration; 3) testimony conflicts; 4) seriousness of the offense; 5) case complexity; 6) whether counsel used time allotted efficiently; and 7) whether counsel set out what issues were not discussed because of the time limitation.
Final argument objections
	In Sandoval v. State, 846 S.W.2d 9 (CA13 1992) (second reh'g op.), the COA reversed the judgment, after finding sufficiently specific and similar to preserve the point for review under TRAP 52(a) [now 33.1] this interruption of DA's jury argument:  "I'm going to object to that.  It's not within the jury Charge as given.  It implies law that's not before this jury."  
	In Andrews v. State, 159 S.W.3d 98 (TCrA 2005), the court held that "counsel's performance was deficient" for failing to object to the erroneous arguments of the prosecutor on punishment that the defendant's sentences could not be cumulated.  The court concluded that there could be no reasonable trial strategy for not objecting and correcting this misstatement of law and false impression that was harmful to defendant, especially when counsel knew that the State had filed a motion to cumulate the sentences.	
Motion for new trial  
	Case law requires a new trial motion be verified or supported by affidavit.  Connor v. State, 877 S.W.2d 325, 327 n. 3 (TCrA 1994).	
	In Charles v. State, 146 S.W.3d 204 (TCrA 2004), the court said that because the trial judge is prohibited from commenting on the evidence in ruling on a motion for new trial, reviewing courts may impute implicit factual findings that support the trial judge's ultimate ruling on that motion when such implicit factual findings are reasonable and record supported. 	For over 100 years, trial judges have the discretion to grant new trials in the interest of justice.  State v. Gonzalez, 855 S.W.2d 692, 694 (TCrA 1993).  There, the court said:
	
	"The discretion of the District Court, in granting new trials, is almost the only protection to the citizen against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, and we think the District Court should never hesitate to use that discretion whenever the ends of justice have not been attained by those verdicts."
	
	A hearing on a motion for new trial is not an "absolute right."  Reyes v. State, 849 S.W.2d 812, 814 (TCrA 1993).  When matters raised in the motion are capable of being determined by the record, no hearing is required.  Id., at 816; see TRAP 31(d).  A prerequisite for a hearing on a motion is that the motion "be supported by affidavit, either of the accused or someone else specifically showing the truth of the grounds of attack."  Reyes, 849 S.W.2d at 816.  The affidavit supporting appellant's motion must demonstrate that "reasonable grounds exist for holding that such relief could be granted."  Id.
	In Hernandez v. State, 28 S.W.3d 660, 663-666 (CA13 2000, pet. ref'd), the court said that appellate courts ordinarily will not reverse unless the trial court has abused its discretion in granting or denying a motion for new trial.  Though the defense attorney's performance is not reasonable under any objective standard of reasonableness when counsel fails to inform defendant of proffered plea bargains, for defendant has a right to be informed thereof as part of his participation in the decision-making process surrounding his defense, the COA held that trial defense counsel was not ineffective for failing to convey a "passing comment which he knew was not a firm plea bargain offer" made by a prosecutor with authority to bind the state, for as trial prosecutor testified at the hearing on motion for new trial:  "Now when there's a recommendation in the file of 40, 60 years, a high profile case, I don't have authority to give or offer 20 years.  I have to go to my supervisor."  The COA concluded the trial court was correct in finding that there was no firm plea bargain offer.  The COA held the trial judge did not abuse her discretion in denying appellant's motion for new trial.  
	In State v. Mercier, 164 S.W.3d 799 (CA13 2005, pet. denied), the court, after reversing the trial court's granting a new trial and ordering acquittal, said:  "We remand the cause for entry of judgment reflecting the jury's verdict."
	In In re A.J.G., 131 S.W.3d 687, 691-692 (CA13 2004, pet. denied), the court explained that family code §§ 51.17, 54.03(f) (2003) place juvenile delinquency proceedings in civil courts but require their adjudication be based on the standard of proof used in criminal cases.  Since juvenile delinquency proceedings are "quasi-criminal" in nature, criminal rules of procedure must be looked to for guidance.  In re B.L.D. and B.R.D., 113 S.W.3d 340, 351 (Tex. 2003).  "Thus, we apply all the standards of review applicable to criminal cases to each of appellant's claims."  In six issues, appellant contends that the trial court abused its discretion by denying her motion for new trial, thereby depriving appellant of her constitutional due process rights.  TRAP 38.1, which establishes the required elements of appellant's brief, notes that a brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."  TRAP 38(h).  If an appellant contends that there has been an abuse of discretion by the trial court, the appellant must demonstrate how the trial court has acted unreasonably or arbitrarily, by misapplying the law or by acting without reference to guiding rules or principles.  Here appellant has failed to include a succinct and clear argument with appropriate citations to authorities as to how the trial court's failure to grant a new trial constituted an abuse of discretion.  Instead, appellant implied throughout her brief that because the jury verdict was allegedly reached in error (as she argues more specifically in other issues), the trial court's subsequent refusal to grant the motion for new trial must have been an abuse of discretion.  This argument was never made explicit, and there was no specific discussion or citation to previous case-law on the abuse of discretion standard.  As appellant has violated TRAP 38.1 "by failing to make additional arguments regarding this alleged abuse of discretion, we hold appellant has waived her challenge to the trial court's denial of her motion for new trial.  See TRAP 38.1. 
Bill of exception
	In Buitureida v. State, 684 S.W.2d 133 (CA13 1984, pet. ref'd), the court held that the trial court erred in sustaining state's objection to cross of Galvan about whether he "had been convicted of a felony *** [or] confined to the -- juvenile correctional institute" and his current juvenile parole status.  Defense counsel stated, in essence, that he was inquiring into the witness' past criminal record to place in the "proper context" this "witness upon whose credibility this jury must past upon."  The prosecutor pushed the court into moving along, and defense failed to make his bill of exception during trial.  However, with advice from trial counsel, appellants new attorneys on appeal timely filed seven bills of exception on August 31, 1981.  Applying the law applicable that day, the COA found the trial court's approving those bills without qualifications, constituted its certification of the correctness of each bill's language.  The COA reversed upon finding insignificant difference between prohibiting appellants their right to fully cross-examine Galvan, a chief state witness, as to his criminal record and his parole status, and the reversible error in Bilbrey v. State, 594 S.W.2d 754 (TCrA 1980) (court's refusal to allow cross-examination of a state witness about his juvenile unexpired probation, to show motive and bias due to possible pressure upon the witness by the prosecution) and the pressure that can be exerted by the state upon a witness placed upon juvenile parole rather than juvenile probation.  However, while appellants preserved their right to develop the same type of testimony with regard to State's witness Mendoza, no showing was made from which the jury could infer the possibility of undue influence to be exerted by the state against Mendoza.  The COA sustained appellant's second ground of error, and overruled their third grounds of error.   
Incomplete reporter's record on appeal
	In Morgan v. State, 1999 Tex.App. LEXIS 5293 (CA13, no pet.), after three successive motions, the court agreed that the appellant was entitled to a new trial where, having timely requested a reporter's record, a significant portion of it has been lost or destroyed, through no fault of appellant, "and if those portions of the lost or destroyed record are both necessary to the appeal and not agreed upon by the parties."  TRAP 34.6(f).  The COA reversed the trial court's judgment of conviction and 40 years sentence and remanded for a new trial, for appellant was unable to agree with the State on the substance of the lost record and appellant complains that he intended to raise errors in connection with jury selection, final argument, and the sufficiency of the evidence, all of which require a review of portions of the record that the reporter is not able to transcribe.

	Defense's Exception and Motions to Hear, Set Aside and Dismiss 
	Excepting, Defendant __________________ moves the court to set aside the information herein and dismiss this cause.  Defendant asks the court to resolve this motion before the day trial commences by jury selection.  As grounds, defendant shows:
	ISSUE:  Does trial court have jurisdiction to try this cause?
	ANSWER:  The face of this cause's charging instrument shows the trial court trying this case has no subject matter jurisdiction over this prosecution.  
	EXCEPTION:  Defendant excepts to that charging instrument's showing upon its face that the court trying the case has no jurisdiction thereof.
	AUTHORITY:  Texas Criminal Procedure Code (TCrPC) article 27.08.4 reads:  "There is no exception to the substance of an indictment or information except:  ... That is shows upon its face that the court trying the case has no jurisdiction thereof."
	ARGUMENT:  A statutory county court has no jurisdiction to try this cause's misdemeanor.  Texas Constitution Article 5, § 8 and TCrPC articles 4.05 and 4.07.
	HEARING REQUEST:  Under TCrPC article 28.01, Sec. 1(4), Defendant asks the court to hear and grant relief on this exception and these motions, after accepting evidence, listening to argument, adducing facts, and applying applicable law.  
	PROPOSED ORDERS:  As aids, defendant attached order(s) on presentation, setting hearing, and resolving the motion's merits.
	ERROR PRESERVATION:  Defendant timely raised and presented this issue before trial and conviction in a statutory county court at law of the alleged misdemeanor offense.  Such prevents issue waiver under Texas Criminal Procedure Code article 1.14(b), Studer v. State, 799 S.W.2d 263, 267 n. 7 (Tex.Cr.App. 1990), and DeDonato v. State, 819 S.W.2d 164 (Tex.Cr.App. 1991).  However, as an additional prerequisite to presenting a complaint for appellate review under Texas Rules Appellate Procedure 33.1(a) et seq., Defendant also objects to the court's refusal to rule on the above exception and motions to set aside and dismiss before the day on which the merits trial commences by jury selection, bench trial or State first witness' swearing in. 
	PRAYER:  Court should dismiss this cause after setting aside its void information.
	CERTIFICATE OF SERVICE:  On _________, 200__, a copy of the above was faxed to 956-______________ or hand delivered to the office of the Assistant DA, __________ County Courthouse's Room ____, _______________ Street, ______, Texas 7_____.
	Respectfully submitted by Defendant's attorney,
	ORDER ON PRESENTMENT
	It is noted that the Exception of the above Defendant _____________ and his Motions to Hear, Set Aside and Dismiss were presented to the court today. 
	SIGNED for entry today, __________________, 200__.
							______________________________
							JUDGE PRESIDING

ORDER SETTING HEARING
	It is ordered that (1) the Exception of the above Defendant ________ and his Motions to Hear, Set Aside and Dismiss are hereby set for hearing on                   , 200__ at         .M.; and (2) the Court's Clerk shall promptly notify the parties' counsels.
	Signed for entry today,                     , 200__.
							______________________________
							JUDGE PRESIDING

ORDER DETERMINING EXCEPTION AND MOTION TO DISMISS
	On a day before the trial on the merits is scheduled to begin in this cause, came on to be heard on _________________. 200__, the timely filed exception of the above Defendant ____________ and his motions to hear, set aside and dismiss this cause.  After hearing evidence and argument, the court finds the face of the charging instrument shows that this court has _____ subject matter jurisdiction of misdemeanor alleged for prosecution in this cause. 
	It is ordered that said Defendant's timely presented exception and motion to set aside are hereby in all things ____ GRANTED. 
	Thus, it is also ordered that this cause be and it is hereby in all things ___ DISMISSED, to which action the State excepted.
	Signed for entry today,                    , 200__.
							______________________________
							JUDGE PRESIDING

REQUEST FOR HEARING ON MOTION TO QUASH COMPLAINT
	Without expense of calling a jury to hear this cause, this defendant moves the court to first hear defendant's dispositive motion to quash the complaint.
AUTHORITIES:
Huynh v. St., 901 S.W.2d 480 (Tx.Cr.App. 1995); and
Schmitz v. St., 952 S.W.2d 922 (Tx.App.-Ft. Worth 1997, pet.ref'd).

ORDER
	After considering this defendant's timely filed motion to quash complaint, it is ordered, adjudged, and decreed that said motion to quash complaint be and the same will be heard at ___________ p.m. on _________________, 200__, before a jury is called in for this case; and the court's clerk shall so notify defendant, his counsel and the city prosecutor.  	
	SIGNED today, __________________, 200__.
							______________________________
							JUDGE PRESIDING	

MOTION TO QUASH COMPLAINT
	Under Texas Criminal Procedure Code articles 45.018 and 45.019(a)(4), this defendant moves the court to quash the complaint that in form is invalid, voidable or void, since that complaint:
1.	fails to charge defendant with the commission of an offense.
2.	fails to state affiant "does believe" the accused has committed an offense against the law of this state.
3.	has not been sworn to by a person who believes the statements alleged therein are true. 
4.	has defects that make invalid this so-called "affidavit".
AUTHORITIES:
Ward v. St., 119 Tx.Cr. 48, 21 S.W.2d 297 (1929);
Sanchez v. St., 138 S.W.3d 324  (Tx.Cr.App. 2004); and
Schmitz v. St., 952 S.W.2d 922 (Tx.App.-Ft. Worth 1997, pet.ref'd).

ORDER

	After considering this timely filed motion, it is ordered, adjudged, and decreed that the above motion to quash complaint be and the same is hereby ___________________.  
	SIGNED today, _______, 200__.
_________________________
JUDGE PRESIDING

DEFENSE'S FIRST MOTION TO SET ASIDE (T.P.C. Section 32.33)

	The above Defendant moves the court to set aside and quash the charging instrument herein by virtue of the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution; Article I, Sections 10 and 19 to the Texas Constitution; and Articles 1.05, 21.01 to 21.23, 27.02, 27.08, and 28.09 and 28.11 of the Texas Code of Criminal Procedure (V.A.C.C.P.), for:
1.	The charging instrument fails to allege:
	a.	the manner and means of the alleged "            ";
	b.	                ; and 
	c.	                .
2.	The charging instrument is defective for failing to allege all the elements of the applicable offense, since this charging instrument fails to allege:
a.	an offense against the Texas laws; and/or
b.	               .
3.	The charging instrument is defective for failing to provide on its face adequate notice of the offense charged, since it fails to allege:
	a.	the acts of said defendant; 
	b.	the omissions of said defendant; and/or
	c.	the duty of said defendant to so act;
	d.	                 .
4.	The charging instrument fails to allege facts sufficient to: (a) bar a subsequent prosecution of the same offense; (b) state all that is necessary for the state to prove to obtain a conviction; (c) give the defendant precise notice of the offense charged; (d)  give adequate notice so a defense can be prepared against the ambiguous assertions therein; (e) permit the defendant to prepare an adequate defense to the charge; and (f) allege all the constituent elements of the offense charged.
5.	The defendant takes exception to this case's charging instrument in that it fails to allege each of the items described above and below and therefore fails to inform the defendant as to the elements described above.
6.	The charging instrument's failure to provide the requested information has and will continue to have a substantial impact on defendant's ability to know from the face of the charging instrument what crime is charged and to prepare a defense to that crime given on the unique facts of this case.
 	ARGUMENT
	Under Article 1, Sections 10 and 19 of the Texas Constitution, and chapters 1, 2, 27 and 28, V.A.C.C.P., the trial court should sustain a defendant's motion to quash demanding that the State allege adequate notice of how the defendant so acted to commit the charged offense.  See State v. Sandoval, 842 S.W.2d 782, 791 (Tex.App.)Corpus Christi 1992, pet. ref'd) [procurement's how].
	WHEREFORE, PREMISES CONSIDERED, the defendant prays that this Court set aside and quash the charging instrument in the above entitled and numbered cause, for this motion is of constitutional dimension and was timely filed.  See DeVaughn v. State, 749 S.W.2d 62 (Tex.Cr.App. 1988).

MOTION FOR ACCUSED'S OWN STATEMENT
 	For good cause shown and defense's need to prepare an adequate defense, this defendant moves pursuant to rights guaranteed by the U.S. Constitution's Amendments V, VI, VIII and XIV and Tex.Crim.Proc. Code articles 38.21-38.23, and 39.14(a), for an order that the government immediately tender to undersigned a true copy of not only all signed and unsigned statement(s) allegedly made by this accused but also those portions of all recordings, report(s), memorandum, statement(s) and document(s), which contain or concern any of this accused's written, oral, or sign language declaration(s), statement(s), confession(s) or admission(s) in the possession, custody or control of the government or any of its agencies that was made either to any federal, state or local government employee or to any private person about any matter occurring before, during or after the crime(s) charged herein, and constitutes or contains evidence material to the prosecution or defense of this accused or relevant to any matter involved in the action or its charging instrument, or may lead to relevant information, whether or not it is itself possibly admissible or inadmissible at trial in this case.  Respectfully submitted by Defendant's Attorney,

MOTION TO SUPPRESS SOME OF STATE'S REBUTTAL EVIDENCE
	Outside the jury's presence, the above defendant moves for suppression under each of below Texas Evidence Rules and objects on the below grounds to that portion of the State's offer of inadmissible rebuttal evidence, for it:
1.	has no tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence;
2.	is not relevant under Rules 401 and 402;
3.	is the State's impeaching and attacking "for the truth of the matter" certain defense evidence which at the State's request the court limited the admission of and so instructed the jury;
4.	was not admitted by the court for anything relevant to the purpose for which the State's attempts to rebut same evidence;
5.	is the State's attempt to rebut a "non-existence straw man" of which there is no relevant evidence before the jury;
6.	is the State's offer of evidence to prove the falsity of defensive evidence which was not admitted for the truth of the matter asserted;
7.	is the State's trouncing limited purpose evidence on the theory that said defense evidence was admitted for a broader purpose than that which the court limited the jury's consideration of that evidence;
8.	is being challenged by the State as if that defense evidence was offered for the truth of the matter asserted therein;
9.	is improper rebuttal evidence under Rule 608(a), for general evidence supporting untruthful character may not be employed where the defense has not raised the issue of truthful character; 
10.	is here not a "loose fit" between the rebuttal evidence and the predicate attacks on character;
11.	is here not a "loose fit" between the State's rebuttal evidence and the State's predicate evidence of character;
12.	is not a proper predicate attack on character by introduction of evidence;
13.	is not a proper predicate attack on character by the use of questions designed to call the non-testifying defendant's character for untruthfulness into doubt;
14.	is not lay or expert witness of the demeanor of the victim during out-of-court statements;
15.	is a lay or expert witness' repetition of the victim's out-of-court statements for an illegitimate purpose;
16.	is a lay or expert witness' opinion of the truthfulness of the victim's out-of-court statements, which were not admitted for "the truth of the matter asserted" therein;
17.	is evidence with probative value, if any, which is substantially outweighed by the danger of unfair prejudice;
18.	is evidence with probative value, if any, which is substantially outweighed by the danger of confusion of the issues;
19.	is evidence with probative value, if any, which is substantially outweighed by the danger of misleading the jury;
20.	is evidence with probative value, if any, which is substantially outweighed by consideration of undue delay;
21.	is evidence with probative value, if any, which is substantially outweighed by consideration of waste of time;
22.	is evidence with probative value, if any, which is needless presentation of cumulative evidence;
23.	is offered to impeach or disprove defense's case-in-chief expert witness(es)' testimony concerning the ability of the class of persons suffering the alleged "impairment" to perceive, remember and relate without inconsistencies the kinds of events at issue in the case:  suicide or murder; 
24.	is offered to impeach or disprove defense's case-in-chief expert witness(es) testimony concerning the defendant's suffering the alleged "impairment" to perceive, remember and relate without inconsistencies the kinds of events of observing the events surrounding the spouse's murder at issue in the case;
25.	is offered to express the lay or express opinion that untruthful is defendant's failure to admit guilty of the alleged charge herein;
26.	is offered to express the lay or express opinion that untruthful is the particular class of "impaired" persons to which defendant belonged;
27.	is improper rebuttal evidence going to the issue of the victim's character or circumstances;
28.	is not proper rebuttal evidence going to any issue of the defendant's character or circumstances at issue;
29.	is not proper rebuttal evidence going to any issue raised by defense of the defendant's character or circumstances;
30.	is inadmissible hearsay under Rule 802;
31.	inadmissible hearsay within hearsay under Rule 805;
32.	inadmissible "back door" hearsay under Schaffer v. State, 777 S.W.2d 111 (Tex.Cr.App. 1989);
33.	inadmissible impeachment under Rule 608(b);
34.	inadmissible specific acts of misconduct concerning reputation, which defendant has not placed in issue;
35.	inadmissible specific acts of misconduct concerning character, which defendant has not placed in issue;
36.	is an specific misconduct act inadmissible under Rule 608(b);
37.	is an attempt to offer evidence "for the truth of the matter asserted" to rebut defense evidence which the court contemporaneously and orally instructed the jury was not admitted for the truth of the matter asserted;
38.	adds credence or weight (bolstering) to earlier unimpeached evidence offered by the State;
39.	is inadmissible bolstering of earlier unimpeached evidence offered by the State;
40.	is improper since defense's evidence was not allowed in for that purpose and could not impeach (contradict) any state evidence;
41.	is victim impact evidence at the guilt phase which has no relevance to proving the accused's state of mind at the time of the shooting;
42.	is victim character evidence at the guilt phase which has no relevance to proving the accused's state of mind at the time of the shooting;
43.	is inadmissible under Article 38.36, V.A.C.C.P.;
44.	is inadmissible to show the harm done to the victim before his death at the guilt phase which has no relevance to proving the accused's state of mind at the time of the shooting;
45.	is inadmissible under Rule 403 when the evidence predominantly encourages comparisons based upon the greater or lesser worth or morality of the victim;
46.	is inadmissible under Rule 403 when the evidence predominantly encourages comparisons based upon the greater or lesser degree of whether the complainant or the defendant was the one more culpable for the problems in or deterioration of their relationship; 
47.	is never competent for the State in the first instance to prove that the deceased was "peaceable and inoffensive";
48.	is never competent for the State in the first instance to prove that the deceased was "peaceable and inoffensive", after the State's case-in-chief included verbal abuse of the defendant by the deceased;
49.	is lay or expert opinion supplanting the jury's determination on the truthfulness of the State's theory of the case; 
50.	is an improper lay or expert opinion constituting "a direct opinion on the untruthfulness" of the defendant's recollection of events which is alleged to be a murder under the State's theory of the case;
51.	is an impermissible comment on credibility, an issue left by law for the jury's determination;
52.	is improper bolstering;
53.	is not proper rebuttal under Rule 608(a);
54.	is an attempt to elicit extraneous specific instances of conduct barred by Rule 608(b);
55.	incorrectly assumes that character "for truthfulness has been attacked by opinion or reputation evidence or otherwise";
56.	is impermissible general rebuttal testimony though no character "for truthfulness has been attacked by opinion or reputation evidence or otherwise" during the defense's case-in-chief;
57.	is impermissible specific rebuttal testimony though no character "for truthfulness has been attacked by opinion or reputation evidence or otherwise" during the defense's case-in-chief; 
58.	is not opened by the door of defendant's cross-examination of any of the State's witnesses;
59.	is not opened by the door of defendant's direct examination of any of the defense's witnesses;
60.	is not opened by the door of defendant's primary theory of the case, namely that the deceased committed suicide;
61.	is not opened by the door of defendant's secondary theory of the case, namely that damage to defendant's brain caused her inability to accurately perceive, recall and recollect and describe consistently the trauma caused by the deceased's committing suicide;
62.	is the State's exceeding the scope of the defense invitation, if any, by introducing lay or expert testimony concerning the actual truth of the State's theory of the case;
63.	is the State's exceeding the scope of the defense invitation, if any, by introducing lay or expert testimony concerning the actual untruth of the defense's theories of the case;
64.	is not general reputation testimony that directly attacks the credibility of the defendant's statements made out-of-court. 
65.	is not general character testimony that directly attacks the credibility of the defendant's statements made out-of-court. 
66.	is not proper evidence relevant to disprove testimony that defendant suffers from a mental handicap, mental disorder, the influence of one or more chemical substance(s), or other physical or mental impairment coupled with testimony about adverse effects that such impairment may have on perception, memory, and/or recounting;
67.	is not general testimony that directly supports incredibility of defendant's "out of court statements" admitted in evidence by the State;
68.	is not testimony that defendant has a general character for making untruthful or dishonest statements;
69.	is not admissible as attacks on credibility;
70.	is not admissible as attacks on credibility, since there is not "loose fit" between the rebuttal testimony and the predicate attacks on credibility by the testimony or by an attorney's questions;
71.	is not offered to rebut other specific defense testimony or question attacking or supporting credibility;
72.	is not offered to rebut other specific defense testimony or question attacking or supporting credibility, and is not also a "tight fit" between rebuttal testimony and the previous specific testimony attacking or supporting credibility;
73.	is not relevant to rebut defendant's denials that she committed the charged crime;
74.	is not relevant to rebut defendant's denials that she committed the charged crime, other than for the impermissible inference of character conformity;
75.	is not relevant to rehabilitate any witness's earlier testimony during the State' case-in-chief with testimony of other "crimes, wrongs, or acts";
76.	is not relevant to rebut defendant's emphatic and consistent denials that she committed the instant offense;
77.	is not a permissible purpose for "evidence of other crimes, wrongs, or acts" under Rule 404(b);
78.	has not theory of logical relevance other than character conformity by which the rebuttal testimony can be said genuinely to rebut defendant's denials of guilty of murder;
79.	is nothing more than a subterfuge for admitting character evidence in violation of Rule 405(b), where a character trait is not an essential element of a charge, claim or defense;
80.	is an attempt to destroy defendant's credibility after she has been impeached by State's admission of inconsistent statements;
81.	is an attempt to shore up the deceased's character after his  conduct and out-of-court declaration were admitted by the court under the State's theory of the applicability of Article 38.36, V.A.C.C.P., for less than "the truth of the matter asserted";
82.	is being used to gut defense's case-in-chief though defense did not get the full benefit of defense's evidence by having admitted for the truth of the matter asserted all purposes
the defendant declarant's out-of-court's statement to her treating professional in the psychological and counseling social work fields;
83.	is offered for the truth of the matter, although the defensive evidence being rebutted was only admitted for what the defendant told to her psychologist and therapist, who relied on those statements in making a diagnosis; 
84.	is impeachment on a collateral matter;
85.	is offered to rebut a collateral issue, even though the parties may not present evidence to show whether or not truthful was a witness's answer to a question about any collateral issue; and/or
86.	is a specific act of conduct admissible under Rule 405 only if the opponent offered evidence under Rule 405, which defense never did.
ARGUMENT
	Texas law was significantly changed by the exception under Texas Evidence Rule 803(4).  The rationale behind this exception is that patients who are seeking medical help generally do not lie or exaggerate about their physical condition, for proper medical treatment depends upon a reliable diagnosis and because patients have a strong motivation to be truthful.  Herasimchuk, Texas Rules of Evidence Handbook, Commentary to Rule 803 at 784-786 (3rd Ed. 1998 Jones/McClure).  See Zinger v. State, 899 S.W.2d 423, 431 (Tex.App.)Austin 1995, no pet.) [child's statement to mental health therapist concerning abuse and abuser was admissible under rule], rev'd on other grounds, 932 S.W.2d 511 (Tex.Cr.App. 1996).  Of course, under the common law, Texas never recognized an actual hearsay exception for statements made for the purpose of medical diagnosis or treatment; and such statements were admissible in Texas only to show the basis of a physician's opinion, not for the truth or as evidence of the facts declared.
	Of course, a trial court should allow introduction of testimony at any time before argument concludes if it appears necessary to the administration of justice.  Art. 36.02, V.A.C.C.P.; Upton v. State, 33 Tex.Cr. 231, 26 S.W. 197 (1894); Yohey v. State, 801 S.W.2d 232, 236 (Tex.App.)San Antonio 1990, pet. ref'd).
	Article 36.01(a)(7) provides that rebutting testimony may be offered by each party.  In Yohey, supra, the court said:

As a general rule the State is entitled to present, on rebuttal, any evidence that tends to refute the defensive theory and evidence introduced to support that theory.  Flannery v. State, 676 S.W.2d 369, 370 (Tex.Crim.App.1984); Laws v. State, 549 S.W.2d 738, 741 (Tex.Crim.App.1977); 23 TEX.JUR. 3rd Criminal Law § 2558 (1982 & Supp. 1990).  The possibility that such rebuttal evidence may encompass extraneous offenses or acts on the part of the defendant does not preclude its admission into evidence.  See and cf. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983); Beasley v. State, 634 S.W.2d 320, 322 (Tex.Crim.App.1982). 
	Generally, evidence of conduct of the defendant involving a person other than the alleged victim is inadmissible as irrelevant, the basis for the exclusion being characterized as res inter alios acta.  For example, a quarrel between the defendant and a third person is irrelevant, Smith v. State, 142 Ala. 14, 39 So. 329 (1904), unless the victim is involved in some way in the quarrel, State v, Maddox, 229 Mo. 840, 98 S.W.2d 535 (1936).
	For additional authorities, see:	
State v. Myers, 382 N.W.2d 91, 98 (Iowa 1986)
Armstrong v. State, 718 S.W.2d 686 (Tex.Cr.App. 1985)
Farris v. State, 643 S.W.2d 694, 697 (Tex.Cr.App. 1982)
Mosley v. State, 983 S.W.2d 249, 271 (Tex.Cr.App. 1998)
Pavlacka v. State, 892 S.W.2d 897 (Tex.Cr.App. 1994)
Schutz. State, 957 S.W.2d 52, 74-77 (Tex.Cr.App. 1997)
Yount v. State, 872 S.W.2d 706, 708 (Tex.Cr.App. 1993)

MOTION FOR JUDICIAL LIMITING FIRST STAGE'S
JURY ARGUMENT OF STATE
	The above defendant moves for an order and would show that the court should order the State to confine its summation at this trial's not guilty phase to permissible areas and to refrain from any mention whatsoever of the various below arguments that have caused appellate courts to reverse convictions.
1.	There are four permissible areas of jury argument for the State:
	a.	A summary of the evidence;
	b.	Discussion of reasonable deductions from the evidence;
	c.	Response to arguments of defense counsel; and
	d.	A proper plea for law enforcement.
2.  COMMUNITY EXPECTATIONS:  That the prosecutor not argue that the people of the community want or expect a conviction, that there is community pressure or sentiment to convict, or that the jury verdict may or may not meet with public approval.  Prohibited argument includes, but is not limited to, these:
	a.	the people are asking the jury to convict the defendant.  Cox  v. State, 247 S.W.2d 262 (Tex.Cr.App. 1952).
	b.	the community would want the defendant sent to prison if the people knew what he had done.  Prado v. State, 626 S.W.2d 775 (Tex.Cr.App. 1982).
	c.	any particular punishment was required to satisfy the community.  Cortez v. State, 683 S.W.2d 419 (Tex.Cr.App. 1984).
3.  PERSONAL OPINION AND VOUCHING FOR CREDIBILITY OF WITNESSES OR STATE'S CASE:  That the prosecutor not express his personal opinion regarding the credibility of the witnesses, the strength of the evidence, the guilt of the defendant or the appropriate punishment.  Prohibited argument includes, but is not limited to, these:
	a.	the prosecutor believes the defendant is guilty.  Villalobos v. State, 568 S.W.2d 134 (Tex.Cr.App. 1978).
	b.	the prosecutor is not paid enough to try to convict an innocent man.  Elizondo v. State, 545 S.W.2d 453 (Tex.Cr.App. 1976).
	c.	the prosecutor does not introduce evidence unless he believes it is true.  Robillard v. State, 641 S.W.2d 910 (Tex.Cr.App. 1982).
	d.	the prosecutor would not prosecute the defendant unless the State's witnesses were telling the truth and the defendant was guilty.  Hickerson v. State, 286 S.W.2d 437 (Tex.Cr.App. 1956).
	e.	the prosecutor has personal knowledge regarding the credibility of the witnesses.  Tinker v. State, 93 S.W.2d 441 (Tex.Cr.App. 1936).
	f.	the prosecutor believes that any particular witness was honest or told the truth.  Menefee v. State, 614 S.W.2d 167 (Tex.Cr.App. 1981).
	g.	police officers are entitled to greater belief than the defendant because the defendant has an interest in acquittal, whereas the officers are impartial and only arrest people whom they believe have committed an offense.  Caka v. State, 302 S.W.2d 939 (Tex.Cr.App. 1957).
	h.	because the jurors are paying the police officers through their taxes and because the city has retained the officers on the payroll that the city must have confidence in their honesty and integrity.  Woodard v. State, 368 S.W.2d 623 (Tex.Cr.App. 1963).
	i.	police officers are sworn to tell the truth and told the truth.  Puckett v. State, 330 S.W.2d 465 (Tex.Cr.App. 1959).
	j.	the race, creed or color of any witness should be a factor in assessing his credibility.  Arnold v. State, 256 S.W. 919 (Tex.Cr.App. 1923).
	k.	the prosecutor not attempt to bolster or rehabilitate the victim's character under the guise of reading an imaginary letter from the victim to a third person reflecting what the victim would say or do if given the opportunity.  Washington v. State, 668 S.W.2d 715 (Tex.App.-Houston [14th Dist.] 1983, pet. ref'd)[prosecutor read an imaginary Christmas card from the murder victim to his child which in effect subtly rehabilitated the victim's character].
4.  IMPROPER REFERENCES TO THE DEFENDANT:  That the prosecutor not refer to defendant by any name other than his given name or nickname, nor by any generic term designed to subject defendant to personal abuse or suggest he is "less than human."  Prohibited argument includes, but is not limited to, these:
	a.	references to heinous criminals, such as Lee Harvey Oswald, Clyde Barrow and John Dillinger.  Rehm v. State, 78 S.W.2d 983 (Tex.Cr.App. 1935); Lee v. State, 97 S.W.2d 697 (Tex.Cr.App. 1936); Stell v. State, 711 S.W.2d 746 (Tex.App.-Corpus Christi 1986, no pet.).
	b.	derogatory references such as:
		1.	"cowardly cur",  Jupe v. State, 217 S.W. 1041 (Tex.Cr.App. 1920);
		2.	"friend from Hell",  McGrew v. State, 143 S.W.2d 946 (Tex.Cr.App. 1940);
		3.	"beast",  Marx v. State, 150 S.W.2d 1014 (Tex.Cr.App. 1962);
		4.	"punk",  Duran v. State, 356 S.W.2d 937 (Tex.Cr.App. 1962);
		5.	"hippie, anti-Christ and Communist",  Renn v. State, 495 S.W.2d 922 (Tex.Cr.App. 1973).
	c.	references to the defendant's race.  Richardson v. State, 257 S.W.2d 308 (Tex.Cr.App. 1953).
	d.	references to the defendant being a foreigner.  Marx v. State, 150 S.W.2d 1014 (Tex.Cr.App. 1941).
5.  OTHER ACTS OF MISCONDUCT BY DEFENDANT:  That the prosecutor not suggest or infer defendant has committed any offense or act of misconduct not in evidence.  Prohibited argument includes, but is not limited to, these:
	a.	there is a reasonable deduction that the defendant has previously been arrested or in jail.  Lookabaugh v. State, 352 S.W.2d 279 (Tex.Cr.App. 1961).
	b.	the defendant earns his livelihood committing the type of offense for which he is on trial.  Walker v. State, 664 S.W.2d 338 (Tex.Cr.App. 1984).
	c.	the evidence raised the inference that the defendant has committed other crimes similar to the offense on trial.  Rodriguez v. State, 520 S.W.2d 778 (Tex.Cr.App. 1975).
	d.	the State is limited in its ability to introduce evidence regarding the defendant's background, prior criminal record, other offenses or acts of misconduct.  Pearson v. State, 652 S.W.2d 616 (Tex.App.-Dallas 1983, no pet.); Everett v. State, 707 S.W.2d 638 (Tex.Cr.App. 1986).
	e.	the prosecutor asked the State's reputation witnesses the only questions allowed by law.  Robinson v. State, 701 S.W.2d 895 (Tex.Cr.App. 1985).
	f.	the defendant's failure to cross-examine the State's reputation witnesses regarding the factual basis for their testimony created an inference that their answers would be unfavorable to the defendant.  Robinson v. State, supra.
	g.	the jury should speculate regarding the factual basis for the defendant's bad reputation.  Green v. State, 679 S.W.2d 516 (Tex.Cr.App. 1984).
6.  FAILURE OF THE DEFENDANT TO TESTIFY:  That the prosecutor not comment, directly or indirectly, on the defendant's failure to testify at either stage of the trial.  Prohibited argument includes, but is not limited to, these:
	a.	the motive for the offense has not been revealed or is "locked up."  Koller v. State, 518 S.W.2d 373 (Tex.Cr.App. 1975).
	b.	it has not been contested that the defendant committed the offense.  Angel v. State, 627 S.W.2d 424 (Tex.Cr.App. 1982).
	c.	there has been no explanation for the offense.  Myers v. State, 573 S.W.2d 19 (Tex.Cr.App. 1978); Lee v. State, 628 S.W.2d 70 (Tex.Cr.App. 1982).
	d.	where only the perpetrator was in a position to rebut the State's witnesses, that the State's evidence was uncontradicted or that the defense had presented no evidence to challenge the victim's credibility.  Dubose v. State, 531 S.W.2d 330 (Tex.Cr.App. 1975);  Pollard v. State, 552 S.W.2d 475 (Tex.Cr.App. 1977).
	e.	where only the perpetrator and the victim were present during the offense and the victim did not testify, that the jury would have to decide the case on circumstantial evidence alone.  McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App. 1975).
	f.	the prosecutor not refer to or gesture at the defendant and argue, "There is somebody we have not heard from in this case and I think you know who it is."  Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App. 1975); Thompson v. State, 651 S.W.2d 785 (Tex.Cr.App. 1983).
	g.	the prosecutor not ask rhetorical questions of the defendant under the guise of argument.  Bird v. State, 527 S.W.2d 891 (Tex.Cr.App. 1975)[prosecutor referred to the defendant's ability to manufacture a silencer for a pistol found at the crime scene and then asked the defendant, "Where did you get it?"].
	h.	the prosecutor not refer to the defendant's failure to raise any particular defense, followed by references in the first person to the manner in which the defendant would have articulated that defense.  Cherry v. State, 507 S.W.2d 549 (Tex.Cr.App. 1974)[prosecutor argued that defendant failed to raise an alibi defense, such as, "I was somewhere else, I was with someone else."]; Cook v. State, 702 S.W.2d 597 (Tex.Cr.App. 1984).
	i.	the defendant has not apologized or expressed remorse.  Koller v. State, 518 S.W.2d 373 (Tex.Cr.App 1975); Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App. 1975); Johnson v. State, 611 S.W.2d 649 (Tex.Cr.App. 1981); Elkins v. State, 647 S.W.2d 663 (Tex.Cr.App. 1983); Dickinson v. State, 685 S.W.2d 320 (Tex.Cr.App. 1984).
7.  IMPROPER REASONS TO CONVICT:  That the prosecutor not argue that the defendant should be convicted for any reason other than that the evidence has established guilt beyond a reasonable doubt.  Prohibited argument includes, but is no limited to, these:
	a.	the defendant should be convicted because of the rising cost of crime.  Bridewell v. State, 114 S.W.2d 259 (Tex.Cr.App. 1938).
	b.	the defendant should be convicted to show the victim or his family that the victim did not suffer in vain.  Stahl v. State, 749 S.W.2d 826 (Tex.Cr.App. 1988).
	c.	the jury should consider the victims of unreported crimes in reaching a verdict.  Borjan v. State, 715 S.W.2d 94 (Tex.App.-San Antonio 1986, no pet.).
	d.	the jury should place itself in the victim's place in reaching a verdict.  Boyington v. State, 738 S.W.2d 704 (Tex.App.-Houston [1st Dist.] 1985, no pet.).
	e.	the jury might be in the victim's place if it does not convict the defendant.  Everett v. State, 707 S.W.2d 638 (Tex.Cr.App. 1986).
	f.	the defendant should be convicted of the highest offense because it has a greater penalty range than the lesser included offenses.  McClure v. State, 544 S.W.2d 390 (Tex.Cr.App. 1976).
	g.	the jury would have to disregard every honorable thought it could ever have to acquit the defendant.  Cook v. State, 540 S.W.2d 708 (Tex.Cr.App. 1976).
	h.	criminal trials were not quests for truth and justice but were methods used by defendants to escape the consequences of their acts.  Cook v. State, 540 S.W.2d 708 (Tex.Cr.App. 1976).
	i.	the defendant can appeal a conviction but the State cannot appeal an acquittal.  Stone v. State, 751 S.W.2d 579 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd.).
	j.	any mistake the jury made would be corrected by an appellate court.  Borgen v. State, 682 S.W.2d 620 (Tex.App-Houston [1st Dist.] 1984, no pet.).
8.  UNSWORN TESTIMONY:  That the prosecutor not mention any fact not in evidence.  Prohibited argument includes, but is not limited to, these:
	a.	any witness did not testify due to fear of the defendant.  Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App. 1975); Johnson v. State, 662 S.W.2d 368 (Tex.Cr.App. 1984).
	b.	any co-defendant or witness who did not testify has been convicted of the same offense for which the defendant is on trial.  Bailey v. State, 531 S.W.2d 628 (Tex.Cr.App. 1976); Thornton v. State, 542 S.W.2d 181 (Tex.Cr.App. 1976).
	c.	any State's witness does not have a prior criminal record.  Hill v. State, 659 S.W.2d 94 (Tex.App.-Houston [14th Dist.] 1983, no pet.).
	d.	the type of offense for which the defendant is on trial contributes to a substantial portion of the crime in the community.  White v. State, 492 S.W.2d 488 (Tex.Cr.App. 1973)[prosecutor argued that 60 percent of the crime in the county was attributable to narcotics].
	e.	the defendant's conduct would affect the victim in any manner not established by the evidence.  Bennett v. State, 677 S.W.2d 121 (Tex.App.-Houston [14th Dist.] 1984, no pet.)[prosecutor argued that the defendant's molestation of young boys could turn them into homosexuals].
	f.	references to the victims of unrelated crimes.  Escobedo v. State, 620 S.W.2d 590 (Tex.Cr.App. 1981)[prosecutor argued about the death of a police officer not connected to the case]; Martinez v. State, 649 S.W.2d 728 (Tex.App.-San Antonio 1983, pet. ref'd)[prosecutor argued that the headlines in the newspaper reflected that a store clerk had been shot during a robbery].
	g.	the prosecutor could have called witnesses to testify that the defendant has a bad reputation.  Pimentel v. State, 710 S.W.2d 764 (Tex.App.-San Antonio 1986, pet. ref'd)[prosecutor argued that he could have brought in the entire police department to testify that the defendant had a bad reputation].
	h.	the defendant did not cross-examine the State's reputation witnesses because he knew their answers would be unfavorable, so what the jury did not hear was more important than what they heard.  Revis v. State, 714 S.W.2d 123 (Tex.App.-Houston [1st Dist.] 1986, no pet.).
	i.	the defendant's failure to call character witnesses meant that his family, friends, neighbors and minister had abandoned him.  McKenzie v. State, 617 S.W.2d 211 (Tex.Cr.App. 1981).
	j.	the State did not call any particular witness because his testimony would have been cumulative of another State's witness.  Bush v. State, 722 S.W.2d 41 (Tex.App.-Eastland 1986, pet. dism'd).
	k.	the case is being tried only to determine punishment.  Cherry v. State, 507 S.W.2d 549 (Tex.Cr.App. 1974).
9.  CRITICISM OF DEFENSE COUNSEL:  That the prosecutor neither argue that defense counsel is subject to criticism for representing persons accused of crime nor criticize defense counsel's courtroom conduct or ethics.  Prohibited argument includes, but is not limited to, these:
	a.	defense counsel is a mouthpiece for criminals whereas the prosecutor is a public servant paid to represent the people of the community.  Dykes v. State, 325 S.W.2d 135 (Tex.Cr.App. 1959).
	b.	the prosecutor is grateful that he represents the people of the community and does not have to make a living representing criminal defendants. Bray v. State, 478 S.W.2d 89 (Tex.Cr.App. 1972).
	c.	the prosecutor took an oath to seek justice but no such oath bore on defense counsel.  Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App. 1975).
	d.	defense counsel's duty is to get the defendant off even if counsel has to put on witnesses to lie.  Bell v. State, 614 S.W.2d 122 (Tex.Cr.App. 1981).
	e.	assuming the defendant is guilty, whether defense counsel wanted the truth before the jury.  Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App. 1975).
	f.	references to any other criminal cases handled by defense counsel.  Summers v. State, 182 S.W.2d 720 (Tex.Cr.App. 1944)[prosecutor argued that defense counsel had previously represented a "dirty bootlegger" who had killer a prohibition leader].
	g.	defense counsel has manufactured evidence or is capable of doing so.  Jones v. State, 205 S.W.2d 590 (Tex.Cr.App. 1947); Gomez v. State, 704 S.W.2d 770 (Tex.Cr.App. 1985); Sunday v. State, 745 S.W.2d 436 (Tex.App.-Beaumont 1988, pet. ref'd)[prosecutor argued that defendant came up with his claim of self-defense only after hiring a lawyer].
	h.	defense counsel and the defendant lied in entering a plea of not guilty.  Lopez v. State, 500 S.W.2d 844 (Tex.Cr.App. 1973).
	i.	defense counsel was willing to or did lie to the jury.  Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App. 1975); Everitt v. State, 707 S.W.2d 638 (Tex.Cr.App. 1986)[prosecutor argued that defense counsel was "a little fast and loose with the truth"].
	j.	defense counsel did not argue that the defendant was innocent.  Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App. 1975).
	k.	defense counsel intimidated the witnesses, the court or the prosecutor.  Andrew v. State, 558 S.W.2d 876 (Tex.Cr.App. 1977) (concurring opinion).
	l.	references to defense counsel's strategy, courtroom tactics or ethics, such as suggesting that counsel is shrewd or tricky.  Jones v. State, 205 S.W.2d 590 (Tex.Cr.App. 1947); Cook v. State, 537 S.W.2d 258 (Tex.Cr.App 1976); Fuentes v. State, 664 S.W.2d 333 (Tex.Cr.App. 1984); Lopez v. State, 705 S.W.2d 296 (Tex.App.-San Antonio 1986, no pet.)[prosecutor argued that counsel's strategy was to keep as much evidence from the jury as possible].
	m.	reference to the fact that defense counsel made objections during the trial.  Garza v. State, 160 S.W.2d 926 (Tex.Cr.App. 1942); Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App. 1975); Fuentes v. State, 664 S.W.2d 333 (Tex.Cr.App. 1984).
	n.	as long as lawyers are for hire, justice is for sale.  Borgen v. State, 672 S.W.2d 456 (Tex.Cr.App. 1984).
10.  COURT PROCEEDINGS:  rosecutor not comment on rulings of the court or defendant's non-testimonial demeanor.  Prohibited argument includes, but is not limited to, these:
	a.	the State could not introduce certain evidence due to the defendant's objections.  Lopez v. State, 705 S.W.2d 296 (Tex.App.-San Antonio 1986, no pet.).
b.	the court's inclusion in the jury charge of a defensive theory or lesser included offense does not mean that the court believed it.  McClory v. State, 510 S.W.2d 932 (Tex.Cr.App. 1974); Dunbar v. State, 551 S.W.2d 382 (Tex.Cr.App. 1977).
c.	reference to defendant's non-testimonial demeanor in the courtroom.  Good v. State, 723 S.W.2d 734 (Tex.Cr.App. 1986); Reynolds v. State, 505 S.W.2d 265 (Tex.Cr.App. 1974) [prosecutor argued that the defendant was "coming down from drugs" in the courtroom].
11.  ARGUING LAW IN A MANNER CONTRARY TO COURT'S CHARGE: That the prosecutor not argue the law in a manner contrary to the court's charge.  Prohibited argument includes, but is not limited to, these:
a.	Any statement of substantive law that is not contained in, and is contrary to, the court's charge.  Davis v. State, 506 S.W.2d 909 (Tex.Cr.App. 1974); Burke v. State, 652 S.W.2d 788 (Tex.Cr.App. 1983).
	b.	Evidence admitted for a limited purpose be considered for any other purpose.  Sanchez v. State, 591 S.W.2d 500 (Tex.Cr.App. 1979)[prosecutor argued that defendant's prior convictions could be considered as evidence of guilt despite instruction limiting their consideration to credibility].
	c.	Hearsay can be considered for the truth of the matter asserted.  Girard v. State, 631 S.W.2d 162 (Tex.Cr.App. 1982).
12.  DRUG CASES:  That the prosecutor not argue about the impact of drugs on the community in any manner not supported by the evidence.  Prohibited argument includes, but is not limited to, these:
	a.	the quantity of drugs possessed was enough to keep someone high for a specified period of time.  Turrentine v. State, 536 S.W.2d 219 (Tex.Cr.App. 1976).
	b.	on the basis of the quantity of drugs possessed, the defendant was probably selling drugs.  Turrentine v. State, supra.
	c.	drug users also sell drugs.  Hemmeline v. State, 314 S.W.2d 833 (Tex.Cr.App. 1958).
	d.	the jurors, as citizens, are in some manner responsible for the drug problem in the community.  Morris v. State, 755 S.W.2d 505 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd).
	e.	the defendant is responsible for the drug problem among young people.  Morris v. State, supra.
	f.	the number of drug dealers in the community would fill any particular location.  Morris v. State, supra [the Astrodome].
	g.	any particular percentage of crime in the community is attributable to drugs.  White v. State, 492 S.W.2d 488 (Tex.Cr.App. 1973).
	h.	the defendant's conduct has adversely affected others in the community.  Rodriguez v. State, 520 S.W.2d 778 (Tex.Cr.App. 1975)[prosecutor argued that the defendant "has touched more lives than a killer with the heroin he disburses"]; Thomas v. State, 527 S.W.2d 567 (Tex.Cr.App. 1975).
	i.	the defendant's involvement with drugs is responsible for numerous crimes committed by others to obtain money for drugs.  Person v. State, 706 S.W.2d 153 (Tex.App.-Houston [1st Dist.] 1986, no pet.).

MOTION FOR COURT REPORTER TO TRANSCRIBE PROCEEDINGS
	This Defendant respectfully requests the Court to instruct its court reporter to record all proceedings in this cause during all phases of the trial and any hearings on pretrial or post-conviction, including but not limited to the following:
a.	All testimony and evidence adduced at all pretrial hearings.
b.	The entire voir dire examination of jury panel on the merits.
c.	All opening statements by the opposing parties' counsel, all objections thereto and court's rulings thereon.
d.	All testimony of each witness, whether or not admitted to jury.
e.	All recordings' contents which are played before the jury and/or the judge.
f.	All exhibits' contents read to jury and/or court by witness or counsel. 
g.	All testimony adduced at each hearing held outside the presence of the jury. 
h.	All communications between court, counsel and/or jury, if any.
i.	All arguments made to jury and/or Court by the opposing parties' counsel. 
j.	All objections made by the opposing counsel, and all court rulings thereon. 
k.	All objections made to the court's charge by the opposing parties' counsel.
l.	All bills of exception, evidence introduced thereon and the court's rulings thereon.

MOTION FOR THE COURT TO RULE ON DEFENSE OBJECTIONS
	The above Defendant files this motion, saying:
1.	To preserve error for appeal, defense counsel must timely object to the State's improper conduct.  Sometimes when defense counsel objects, court often comment, "The jury will recall the evidence," or "Stay in the record" or "Move along".  Such comment does not constitute a ruling on the objection sufficient to preserve error for appeal.  Error is waived unless an objection is pressed to the point of obtaining an adverse ruling.
2.	If parties' counsel objects during this criminal proceeding, Defendant requests the court to rule either sustaining or overruling the objection and not require defense counsel either to specifically ask for a ruling in the presence of the jury or to have to object to the court's refusal to rule on defense objections.

MOTION TO INSPECT, EXAMINE AND TEST PHYSICAL EVIDENCE
	The above defendant moves this Court to order State to produce certain items of physical evidence in this case presently or formerly in State's possession and control for defense inspection and possible testing by defense experts: 
1.	All clothing taken as evidence from the defendant, co-defendant, the complainant, and any other person connected to this case.
2.	All fingerprints taken as part of this case's investigation.
3.	All blood samples, bodily fluids, tissues or hair samples taken from the scene of the alleged crime or from any person, home or vehicle.
4.	All physical evidence, including photographs, relied upon by a person used or to be called as State witnesses at trial.
5.	All other physical evidence state took from the scene of any of the alleged crime(s) or from any complainant or victim as part of its case investigation.
6.	All scientific evidence relating to this case's defense or prosecution.
7.	All recordings, physical evidence or information relating to this cause that the State does not intend to offer into evidence.
8.	All recordings, physical evidence or information State intends to offer in evidence.
9.	All physical evidence State illegally obtained during this case's investigation.
10.	Each motor vehicle, if any, and part thereof related to this case's crime.
11.	All firearm(s) evidence, if any, relating to any weapon's firing.
	The request for inspection, examination and testing of the specific items set out above is essential to ensure the defendant his right to a fair hearing, his right to confrontation, his right to prepare a defense in his own behalf, his right to the effective assistance of counsel and due process of law guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, Article I, §§ 10, 13 and 19 of the Texas Constitution.
	WHEREFORE, PREMISES CONSIDERED, defendant prays that:
1.	The Court order the State to diligently exercise due diligence to reacquire for defense inspection, examination and testing of each item above described.
2.	The District Attorney be ordered to produce all items of physical evidence described herein and to allow the defendant and experts designated by the defendant the right to examine, inspect, photograph and conduct scientific tests on said items at a specific time and place to be fixed by the court.
3.	The time set for inspection, testing and photographing of the items requested be at a reasonable time in advance of trial.
4.	The Court enter an order requiring the District Attorney's Office to make continuing disclosure of all additional items of physical evidence obtained by the State concerning the charges against the defendant.
5.	The Court set this motion down for an evidentiary hearing.

	OBJECTIONS TO COURT'S LIMITING OF CROSS-EXAMINATION
	The above defendant contends that he should be able to cross-examine each State's witness regarding each's current and past motivations for pursuing an attempt to have the above defendant successfully prosecute in the above case.
	Defendant will be denied a substantial right of confrontation if the trial court prohibits defendant full cross-examination of the prosecuting witness.  The trial court's said action will withdraw from the defendant "one of the safeguards essential to a fair trial."  Alford v. U.S., 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1931).  The trial court's denial of this right of confrontation will be "constitutional error of the first magnitude and no amount of showing of want of prejudice [will] cure it.'  Davis v. Alaska, 415 U.S. at 318, 94 S.Ct. at 111; Evans v. State, Tex.Cr.App., 519 S.W.2d 868."  Spain v. State, 585 S.W.2d 705, 710 (Tex.Cr.App. 1979) (reh'g en banc denied).
	"An effective cross-examination encompasses more than just the opportunity to elicit testimony to establish the existence of certain facts.  The cross-examiner should be allowed to expose the limits of the witness' knowledge of relevant facts, place the witness in his proper setting, and test the credibility of the witness.  The failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard to the witness' credibility.  An unbelievable denial of the existence of a fact can be even more probative as to lack of credibility than an affirmative admission of the fact."  Spain v. State, 585 S.W.2d 705, 710 (Tex.Cr.App. 1979) (rehearing en banc denied).
	Going beyond the above federal and state constitutional right to "full" confrontation by cross-examination of the prosecuting witness(es), there remains the alternate, and alone sufficient, basis supporting defendant's contention that the trial court would reversibly erred in prohibiting defense from showing the jury the State witness' ill feeling, interest, motive, animus and bias against defendant.
	In Simmons v. State, 548 S.W.2d 386, 388 (Tex.Cr.App. 1977), the court reviewed previous cases involving the denial of cross-examination, and concluded:

"These cases underscore the well-established rule (and exception to Art. 38.29, V.A.C.P.) that great latitude is allowed the accused in showing any fact, including pending charges, which would tend to establish ill feeling, bias, motive, and animus on the part of any witness testifying against him."

	In Coleman v. State, 545 S.W.2d 831, 833-834 (Tex.Cr.App. 1977), the court said:

	"The animus, motive, or ill-will of a prosecuting witness who testifies against the defendant is never a collateral or irrelevant inquiry, and the defendant may show by himself, or by others if necessary, why the witness is unfriendly toward him.  Kissinger v. State, 126 Tex.Cr.R. 182, 70 S.W.2d 740, 742 (1934).  It is not necessary that a predicate be laid that the witness himself is biased toward the defendant before the evidence which would create this bias is introduced.  Smith v. State, 106 Tex.Cr.R. 202, 291 S.W. 544, 545 (1927).  The reasoning behind this rule is simply that great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the party of any witness testifying against him.  The jury should be given the opportunity to judge for themselves the witness's credibility in light of his feelings toward the defendant.  Wood v. State, 486 S.W.2d 359, 362 (Tex.Cr.App. 1972); Minor v. State, 476 S.W.2d 694, 695 (Tex.Cr.App. 1972).

	"This Court allows '... legitimate exploration of those matters indicating the friendship or leaning of witnesses, and those associated with them, toward any party or issue involved.'  (Emphasis added) Gunn v. State, 95 Tex.Cr.R. 276, 252 S.W. 172, 178 (1922).  '... [A]ny fact and every fact going or tending to show mental bias, interests, prejudice, or any other motive, or mental state, or status [of the witness], which, fairly considered and construed, might even remotely tend to affect his credibility, should [be] admitted.'  (Emphasis added) Green v. State, 54 Tex.Cr.R. 3, 111 S.W. 933, 935 (1908).  'There can be, we think, no doubt that it is always permissible, in every case where it can be shown by competent evidence, to make proof of any party or any cause before the court.  Such evidence is clearly admissible for the purpose of affecting the credibility of witnesses and the weight of their testimony.'  (Emphasis added) Burnett v. State, 53 Tex.Cr.R. 515, 112 S.W. 74, 79 (1908).

	"It has been held that inquiry is proper as to whether a relative of a witness is an enemy of the accused.  Wade v. State, 75 Tex.Cr.R. 531, 171 S.W. 713 (1914).  Therefore, it should be proper to show that former fellow employees of the witness are enemies of the accused.

	"In civil cases, the rule is well established that 'the jury is entitled to know any fact which would tend to influence the testimony given by a witness ....  The rule is based upon the theory that the jury should know such facts, the better to enable them to weigh the words of the witness."  Hyde v. Marks, 138 S.W.2d 619, 623 (Tex.Civ.App.-Fort Worth, 1940, writ dism'd, judgmt. correct).  This is the rule where money and property are involved.  It should not differ where liberty is the concern.

	"The motives which operate on the mind of the witness while he testifies should never be regarded as immaterial, because they tend to affect his credibility.  McDonald v. State, 77 Tex.Cr.R. 612, 179 S.W. 880, 882 (1915)."

	In Cox v. State, 523 S.W.2d 695, 700 (Tex.Cr.App. 1975),  
the court said:

	"The fact that a witness has brought a civil suit against the defendant growing out of the same incident is admissible as tending to show interest and bias.  Rhodes v. State, Tex.Cr.App., 387 S.W.2d 413; Blake v. State, Tex.Cr.App., 365 S.W.2d 795.

	"In the instant case the fact of the filing of the civil law suit was before the jury.  Under the circumstances as shown the court did not err in refusing to admit the pleading in evidence.  See Barker v. State, Tex.Cr.App., 509 S.W.2d 353; Brooks v. State, Tex.Cr.App., 475 S.W.2d 268; Acker v. State, Tex.Cr.App., 421 S.W.2d 398."

	In Robinson v. State, 550 S.W.2d 54, 59 (Tex.Cr.App. 1977), the court said:

	"It has been stated many times that great latitude should be allowed a defendant in showing any fact which would establish bias, motive, or ill feeling on the part of any witness for the State.  See Evans v. State, Tex.Cr.App., 519 S.W.2d 868.  This includes examining an accomplice witness who is testifying for the State in regard to any recommendations for probation or promises not to prosecute.  See Burkhalter v. State, Tex.Cr.App., 493 S.W.2d 214; Stephens v. State, Tex.Cr.App., 522 S.W.2d 924."

	In Blake v. State, 365 S.W.2d 795, 796 (Tex.Cr.App. 1963), the court said:

	"On cross-examination of the state's witness Stahlman, appellant sought to show that a civil suit had been filed by Stahlman Lumber Company, Inc., against appellant and the bonding company, Fidelity and Deposit Company of Maryland, to recover the sum of $31,086.75 alleged to have been taken by appellant.  The state objected to such testimony on the ground that it was immaterial, which objection was by the court sustained.  In the absence of the jury, appellant perfected his bill of exception by showing, upon further cross-examination of the witness, that such suit had been filed and was pending.  Appellant again sought to offer such testimony before the jury, stating to the court that it was being offered to show bias upon the part of the prosecuting witness and also to impeach his testimony given in the jury's presence that he did not know that such suit had been filed.  This offer was by the court refused.

	"The testimony should have been admitted.  Stahlman testified before the jury that he did not know of such suit being filed.  Appellant should have been allowed to show that such suit had been filed.  It is well settled that great latitude is allowed in cross-examination when its purpose is to bring out facts which will give to the jury the attitude, motive and interest which may be affecting the testimony of a witness.  Hughes v. State, 163 Tex.Cr.R. 575, 294 S.W.2d 846.  For the purpose of discrediting him, it may be shown that a prosecuting witness has brought a civil suit for damages based upon the same occurrence as that for which the accused is being prosecuted.  45 Tex.Jur. 77, Sec. 222; Vyoral v. State, 88 Tex.Cr.R. 34, 224 S.W. 889; Branford v. State, 165 Tex.Cr.R. 314, 306 S.W.2d 725.  The prosecuting witness, Stalhman, gave testimony most damaging to appellant and, under the record, the court's refusal to permit appellant to show that a suit had been filed against him (appellant) and the bonding company by the company of which the witness was an officer and stockholder was error.

	"For the error pointed out, the judgment is reversed and the cause is remanded"

	In Steve v. State, 614 S.W.2d 137 (Tex.Cr.App. 1981), addressing the defendant's similar contention the court said:
"The appellant contends that he was prevented by the trial court from showing Bialas's bias and prejudice as a witness and her motive for making these allegations (against him)."

* * * * *

	"The appellant also contends that it was error to exclude evidence showing that at the time he was charged with this offense the Bexar County Child Welfare Department was investigating a report that Bialas physically abused her two children.  The appellant's defensive theory was that in order to divert the focus of the Welfare Department's investigation from herself, Bialas forced the complaining witness to allege that she had been sexually abused by the appellant.  The appellant's bill of exception shows that Beverly Clay, a caseworker for the Bexar County Child Welfare Department, would have testified that she originally contacted Bialas because of a report that Bialas was physically abusing her children.  The trial court sustained the State's objection that this evidence was irrelevant.  The motives which operate on the mind of a witness while he testifies should never be regarded as immaterial or irrelevant.  McDonald v. State, 77 Cr.Rep. 612, 179 S.W. 880 (1915).  Great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive, or animus upon the part of any witness testifying against him.  The jury should be given the opportunity to judge for themselves the witness's credibility in light of the witness's feelings toward the accused and his motive for testifying.  Wood v. State, 486 S.W.2d 359 (Tex.Cr.App. 1972); Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App. 1977).

	"In the instant case the excluded testimony showed that a child abuse investigation was pending against Bialas at the time her daughter charged the appellant with sexual indecency.  This testimony reasonably tended to establish a motive for Bialas's testimony against the appellant.  Facts which tended to show Bialas's motive for testifying were proper impeachment evidence.  We hold, therefore, that the proffered testimony was erroneously excluded.

	"The judgment of the trial court is reversed and the cause is remanded."

	In Smith v. State, 106 Tex.Cr.R. 202, 291 S.W. 544 (1927), the court said:

	"Bill of Exception No. 1 shows that while the witness Mrs. Tom Rayburn was being cross-examined by the appellants, the following question was propounded to her, 'Have you and his wife (meaning wife of I.D. Smith) ever had any words?'  The witness, if permitted, would have answered the question in the affirmative.  This evidence was offered for the purpose of proving the existence of animus, ill will, and bad feeling of the witness toward appellants, but was excluded by the court on objection of the state.  Bills of Exception Nos. 4, 5, 6, and 7 all relate to the same question raised by this bill and are of similar import.

	"The record discloses that there was more or less a feeling of ill will and animus existing between the witnesses for the state and the appellants.
	"We are of the opinion that in light of all the testimony in this case that the court fell into error in declining to permit the evidence complained of in the several bills of exception to go to the jury.  All of this evidence tended to show the ill feeling and motive and bias of the prosecuting witnesses against the appellants.  Anything that tends to show ill feeling, bias, and motive of a witness is competent evidence.  The motives which operate on the mind of a witness when he testifies are never immaterial, and the adverse party may prove acts and declarations of the witness that tend to show ill feeling, bias, motive, and animus.  Even though the witness admits bias or prejudice, the extent of it may be shown.  Great latitude is allowed defendant in showing any fact which would tend to establish ill feeling, bias, motive, and animus upon the part of any witness or witnesses testifying against him, and we are unable to find any case that holds he must first lay a predicate by asking the witness if he has any such animus toward the defendant, and, if witness admits the existence of such that that ends the matter, and that proof of particular acts tending to show animus are only admissible upon the witness denying the existence of animus.  Sherly v. State, 72 Tex.Cr.R. 665, 163 S.W. 708; Edwards v. State, 75 Tex.Cr.R. 647, 172 S.W. 232 (motion for rehearing); Section 163, at pages 93, 94, and 95 of Branch's Penal Code.

	"For the errors pointed out above, the judgment of the trial court is reversed and the cause remanded."

	In Rhodes v. State, 387 S.W.2d 413, 414 (Tex.Cr.App. 1965), the court said:

	"In view of our disposition of this case a recitation of the facts is not deemed necessary other than to observe that the prosecuting witness Powell was the only witness for the State as to the actual assault.  On cross examination of Powell, appellant inquired if he had filed a suit against appellant for $20,000.00.  The State's objection was sustained with the admonition of the Court to 'Stay off the civil suit'.  In the absence of the jury for the purpose of perfecting a bill of exception, it was stipulated that Powell, if permitted, would testify that he was the plaintiff in a civil suit in which he sought to recover said sum from appellant, that such suit was pending, and that it arose out of the same transaction from which this criminal prosecution stemmed, and that such testimony was offered for the purpose of showing bias of the witness Powell.  The court overruled appellant's tender of such evidence and appellant excepted.

	"In Hoffman v. State, 85 Tex.Cr.R. 11, 209 S.W. 747, this Court held that evidence that the prosecuting witness had brought a suit against the accused for damages growing out of the incident for which the accused was then on trial and that such suit was still pending was admissible to show the animus and interest of the witness.

	"In Vyoral v. State, 88 Tex.Cr.R. 34, 224 S.W. 889, this Court held that the injured party in the criminal action might be cross examined concerning a pending civil suit for damages which she had brought against accused growing out of the same incident." 

	"In the recent case of Blake v. State, Tex.Cr.App., 365 S.W.2d 795, We held that evidence that the witness Stahlman, who was an officer and stockholder in a corporation which had brought a civil action against the accused growing out of the alleged embezzlement for which accused was being tried, was admissible to show bias of the witness.  See also 1 Branch's Ann.P.C.(2d) Art. 46, Sec. 185, p. 192.

	"We overrule the State's contention that this question is not properly before this Court for review.

	"For the error pointed out, the judgment is reversed and the cause is remanded."

	In the civil case of Ferguson Seed Farms, Inc. v. McMillan, 18 S.W.2d 595, 598-599 (Tex.Commission App. 1929), the court said:

	"While one Markham was on the stand testifying as a witness for the plaintiff, counsel for defendant propounded to him the following question:  'Is it not a fact that you are now claiming that Mr. Ferguson owes you a large amount of money growing out of the operation of the gin and that plaintiff's attorneys in this case are your attorneys in that claim, and that you are expecting to file a suit against Mr. Ferguson growing out of the operation of the gin; isn't that true?'

	"Plaintiff made the following objection to said question:  'We object as irrelevant and immaterial and not the proper way to test his bias or prejudice, if any he has.  If counsel desires to go into that matter, he should first ask the direct question.'

	"The above objection was sustained by the trial court.  The bill shows that, had the witness been permitted to answer the question, he would have testified:  'That he has a claim against the defendant growing out of the operation of the gin; that under his contract he was to get a certain per cent of the revenues of the gin; that he had consulted with one of the attorneys of the plaintiff about his claim against the defendant; that he expected the defendant to pay the claim but if it did not, he would sue defendant to collect his claim.'

	"The Court of Civil Appeals (296 S.W. 902) holds that the above ruling presents no error, because, 'before a witness can be impeached by questions of this character, tending to show his bias or interest, a predicate for such impeachment must first be laid'--citing G., C. & S. F. Ry. Co. v. Young, (Tex.Civ.App.) 284 S.W. 664; G., H. & S. A. Ry. Co. v. La Prelle, 22 Tex. Civ. App. 593, 55 S.W. 125; 40 Cyc. 2676.  We think the witness should have been required to answer the question propounded.  It was asked for the purpose of showing bias and prejudice on the part of the witness against the defendant, and was properly asked for that purpose.  Wentworth v. Crawford, 11 Tex. 127; Jones v. McCoy, 3 Tex. 349; 40 Cyc. p. 2662 et seq.  The authorities cited by the Court of Civil Appeals do not support their holding.  They merely hold that, in order to warrant the introduction of evidence to show interest or bias on the part of a witness, a foundation must first be laid by interrogating the witness sought to be impeached concerning the specific matters which it is proposed to show.  40 Cyc. p. 2676.  That is exactly what the defendant was attempting to do in this instance.  We think the evidence was material, as the witness Markham had given damaging testimony against defendant."

	* * * * *

	"We recommend that the judgments of the Court of Civil Appeals and the district court be reversed, and the cause remanded to the district court for a new trial.

	"Cureton, C.J. Judgments of the district court and Court of Civil Appeals both reversed, and cause remanded to the district court, as recommended by the Commission of Appeals."

	Proof of bias by evidence of utterances and conduct is dealt with by Ray, Texas Law of Evidence (3rd Ed. 1980) in  §  677 as follows:

	"A witness seldom admits that he is biased for or against a party.  His feelings must therefore be evidenced in some indirect way.  This may be done by a showing of external circumstances such as were discussed in the preceding section.  Or they may be inferred from utterances and acts of the witness.  Whether the particular declaration or conduct is strong enough to form the basis of an inference of hostility or partiality is a question which must be left largely to the trial court's discretion.  Illustrations of expressions and acts which were regarded as sufficient are set out in the footnote."  (Footnotes omitted.)
CONCLUSION
	Turning to the specifics of this case, there will be a proofer of cross-examination questions to each witness for the State as to his or her said current and past motivations.
	The trial court should not exclude from the jury the prosecuting witness's answers.  Those questions tend to show the witness's ill feeling, bias, interest, motive and animus for testifying.  These questions are proper impeachment evidence.  Ferguson Seed Farms, Inc. v. McMillan, 18 S.W.2d 595, 598-599 (Tex.Comm.App. 1929); Rhodes v. State, 387 S.W.2d 413, 414 (Tex.Cr.App. 1965) and cases cited therein; Cox v. State, 523 S.W.2d 695, 700 (Tex.Cr.App. 1975).  See also Alford v. U.S., 282 U.S. at 692, 51 S.Ct. at 219; Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); Smith v. State, 106 Tex.Cr.R. 202, 291 S.W. 544 (1927); Coleman v. State, 545 S.W.2d 831, 833-834 (Tex.Cr.App. 1977); Simmons v. State, 548 S.W.2d 386, 388 (Tex.Cr.App. 1977); Spain v. State, 585 S.W.2d 705, 710 (Tex.Cr.App. 1979) (rehearing en banc denied 1979); and Steve v. State, 614 S.W.2d 137 (Tex.Cr.App. 1981).  

DEFENSE'S MOTION FOR INSTRUCTIONS LIMITING
JURY'S CONSIDERATION OF EVIDENCE	
	The above accused moves the court to limit the manner in which the jury can consider certain testimony and evidence.
1.	The State intends to introduce evidence of:
A.	Extraneous offenses and other acts under T.E.R. 404(b);
B.	Outcry statements under Article 38.072, V.A.C.C.P.;
C.	Hearsay under Article VIII, T.E.R;
D.	Lay Witness's Opinion on Ultimate Issues under T.E.R. 701 and 704;
E.	Corroboration testimony under Article 38.07, V.A.C.C.P.; 
F.	Accomplice testimony under Article 38.14, V.A.C.C.P.;
G.	Photographic evidence in theft cases under Article 38.34, V.A.C.C.P.;
H.	Liability insurance under T.E.R. 411;
I.	Character evidence of the accused and/or victim under T.E.R. 404(a) and 405;
J.	Evidence of habit or routine practice under T.E.R. 406;
K.	Subsequent remedial measures under T.E.R. 407(a);
L.	Compromise and offers to compromise under T.E.R. 408;
M.	Claim of privilege's adverse inferences under T.E.R. 513;
N.	Witness's lack of personal knowledge under T.E.R. 602;
O.	Impeaching a witness under T.E.R. 607;
P.	Opinion and reputation on witness' credibility under T.E.R. 608(a);
Q.	Specific instances of a witness's conduct on a witness's credibility under T.E.R. 608(b);
R.	Impeaching a witness with prior conviction under T.E.R. 609;
	S.	Juvenile adjudication under T.E.R. 609(d);
T.	Prior statements of witnesses under T.E.R. 612(a);
U.	Bias or interest of witness under T.E.R. 612(b);
V.	A witness' prior consistent statement under T.E.R. 612(c) and 801(e)(1)(B);
W.	A witness's beliefs or opinions on matters of religion under T.E.R. 615;
X.	An expert witness's opinion or disclosure of underlying facts or data under T.E.R. 703, 704 and 705;
Y.	Statements which are not hearsay under T.E.R. 801(e) or 803;
Z.	The declarant's credibility under T.E.R. 806
2.	"[T]he court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly...." T.E.R. 105 (a).  The defendant hereby requests the court to instruct the jury as to that evidence's restricted and proper scope not only in the court's final jury instructions but also when the evidence is being admitted to the jury for one purpose but not for other purposes.  The defendant also requests the court to instruct the jury that because of its limited admissibility said evidence cannot be used against defendant to determine whether or not defendant is guilty as charged.
3.	In jury argument, the parties and court are bound by the same limiting instructions given the jury, for
a.	"In a jury trial, the State cannot rely on theories  not contained in the jury charge to support fact findings."  Rodriguez v. State, 767 S.W.2d 817, 820 (Tex.App.-Corpus Christi 1989, no pet.).
b.	A prosecutor may not argue to the jury a statement of law that is contrary to that presented in the jury charge.  Sandoval v. State, 846 S.W.2d 9, 10-11 (Tex.App.-Corpus Christi 1992, pet. ref'd); Whiting v. State, 797 S.W.2d 45 (Tex.Cr.App. 1990) [the State may not argue that it has the burden of proof only on the elements of the offense, contrary to the self defense charge to the jury];  Sanchez v. State, 591 S.W.2d 500 (Tex.Cr.App. 1979) [improper for State to argue prior convictions as evidence of guilt and a limiting instruction in the jury charge was insufficient to cure error].
4.	On appeal, parties and courts are bound by the same limiting instructions given the jury. Owens v. State, 827 S.W.2d 911, 917 (Tex.Cr.App. 1992).
5.	The jury is presumed to have followed the court's law instructions.  Rose v. State, 752 S.W.2d 529, 554 (Tex.Cr.App. 1987).
6.	The subject of limiting instructions is discussed in Hitchcock v. State,  612 S.W.2d 930 (Tex.Cr.App. 1981).  There the trial court's judgment was reversed and the cause remanded because a limiting instruction was required in the case upon appellant's timely objection, in writing, to the jury charge and request "that the court give a proper instruction in its charge to the jury as to the reasons for said offenses and the weight they should be given and how the jury should consider them."  See Thompson v. State, 795 S.W.2d 177, 178 (Tex.Cr.App. 1990), where Judge Miller joined by Judges Clinton and Teague dissented to dismissal of the petition for discretionary review because the giving of a limiting instruction should, on request, be mandatory both at the time the evidence is admitted and in the court's charge to the jury; additionally, the trial court's who do not follow that double instruction practice run the risk of being reversed for abuse of discretion should an appellate court find that the failure to timely instruct the jury resulted in harm under T.R.App.P. 81(b)(2) (which, of course, calls for the State to show beyond a reasonable doubt that failure to timely instruct the jury did not contribute to the verdict).  See also Contreras v. State, 766 S.W.2d 891 (Tex.App.-San Antonio 1989, no pet.), where the court reversed and remanded the cause because given the State's heavy reliance in jury argument on witness Genaro Contreras' prior inconsistent statement to the notary public, the appeals court cannot say, beyond a reasonable doubt, that the unlimited admission of the statement did not contribute to the conviction.
SUPPORTING LAW MEMO
	Texas Evidence Rule 105 reads:	
	(a) Limiting Instruction.	When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal. 

	(b) Offering Evidence for Limiting Purpose.  When evidence referred to in paragraph (a) is excluded, such exclusion shall not be a ground for complaint on appeal unless the proponent expressly offers the evidence for its limited, admissible purpose or limits its offer to the party against whom it is admissible.
	An error in a jury charge which has been properly preserved by objection will call for reversal as long as the error is not harmless.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1985) (On Rehearing).  Where the defendant preserves error by timely requesting a jury instruction or objecting to a jury instruction's omission, any harm resulting to the defendant will require reversal.  Gibson v. State, 726 S.W.2d 129, 133 (Tex.Cr.App. 1987);  Arline v. State, 721 S.W.2d 348 (Tex.Cr.App. 1987).
	In Montgomery v. State, 810 S.W.2d 372, 387-388 (Tex.Cr.App. 1990), the court said:

	If the trial court determines the evidence has no relevance apart from character conformity, then the evidence is absolutely inadmissible.  The trial court has no discretion to admit it.  See 22 Wright & Graham, Federal Practice and Procedure:  Evidence § § 5249 & 5250 (1978), at 540 & 544.

	On the other hand, the proponent of the evidence may persuade the trial court that the "other crime, wrong, or act" has relevance apart from character conformity; that it tends to establish some elemental fact, such as identity or intent;  that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g., absence of mistake or accident.  Rule 404(b), supra.  The proponent may also persuade the court that it is relevant upon a logical inference not anticipated by the rulemakers.  This is the reason the "purposes" designated in Rule 404(b) for which "other crimes, wrongs, or acts" are admissible are, as was pointed out on original submission, "neither mutually exclusive nor collectively exhaustive."  Clearly, McCormick on Evidence, § 190 (3d ed. 1984), at 558.  Cf. Morgan v. State, 692 S.W.2d 877, at 879 (Tex.Cr.App. 1985) (list in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App. 1972) "was exemplary rather than exhaustive....").  Should he admit the evidence, then upon timely further request, the trial judge should instruct the jury that the evidence is limited to whatever purpose the proponent has persuaded him it serves. Tex.R.Cr.Evid. Rule 105(a).

	In Abnor v. State, 808 S.W.2d 476, 477-478 (Tex.Cr.App.

1991), the court said:

	Prior to its submission to the jury, appellant objected to the court's charge for its failure to limit the jury's consideration of the extraneous offenses. Appellant offered several proposed charges for the trial court's consideration.

	It is well settled that a defendant is to be tried on accusations in the State's pleading only, and not for being a criminal generally.  Wilkerson v. State, 736 S.W.2d 656 (Tex.Cr.App.1987). Proof of an extraneous offense may be admissible at the guilt/innocence phase of trial insofar as it illuminates a material issue in that case.  E.g. Crank v. State, 761 S.W.2d 328, 340-45 (Tex.Cr.App.1988).  It is never admissible merely to encourage the inference that an accused is probably guilty because he committed other crimes.  Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983).

	In the case at bar, the State was entitled to introduce evidence of appellant's extraneous offenses for the limited purpose of explaining Parson's prior inconsistent statement.  Williams v. State, 604 S.W.2d 146 (Tex.Cr.App.1980); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978).  Where evidence is admissible for a limited purpose and the court admits it without limitation, the party opposing the evidence has the burden of requesting a limiting instruction.  Plante v. State, 692 S.W.2d 487, 493 (Tex.Cr.App.1985).  Appellant met that burden, but the trial court refused to limit the jury's consideration of the extraneous offenses.  Accordingly, the trial court erred.  See Porter v. State, 709 S.W.2d 213 (Tex.Cr.App.1986.

	Having determined that a limiting instruction should have been given, this case must be remanded to the Court of Appeals for an assessment of harm in light of our holding in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985).

	The judgment of the Court of Appeals is reversed and the cause is remanded to that court for action consistent with this opinion.

	In Porter v. State, 709 S.W.2d 212, 215-217 (Tex.Cr.App.1986), the court said (footnote omitted):
	We will first consider appellant's second contention that the Court of Appeals erred by concluding that a limiting instruction was not necessary.  Generally, an instruction limiting a jury's consideration of certain evidence is not required when the evidence is admissible to prove a main fact in the case. McWherter v. State, 607 S.W.2d 531 (Tex.Cr.App.1980); Ruiz, supra; Lapp v. State, 519 S.W.2d 443 (Tex.Cr.App.1975);  Dilliard v. State, 477 S.W.2d 547 (Tex.Cr.App.1971);  Lacy v. State, 424 S.W.2d 929 (Tex.Cr.App.1967).

	If, however, evidence is offered for a specific purpose, the defendant is entitled upon proper request to a charge limiting the jury's consideration of that evidence to the purpose for which it was offered.  Crawford v. State, 696 S.W.2d 903 (Tex.Cr.App.1985), at 907 citing Hitchcock v. State, 612 S.W.2d 930 (Tex.Cr.App.1981) and Bates v. State, 165 Tex.Cr.R. 140, 305 S.W.2d 366 (1957).  If the trial court fails to give the jury a proper limiting instruction, reversible error arises.  Hitchcock, supra.

	In the case at bar, appellant admitted that the act of intercourse took place, and disputed only the complainant's failure to consent.  The State argued at trial that the evidence of the extraneous offenses was offered only to impeach appellant by showing that appellant's trouble with the law in California was not, as appellant had said, limited to pimping and pandering.  Clearly, the evidence was not admitted to prove any main fact issue in the case and was offered for a specific purpose:  to impeach appellant's credibility.  As such, a limiting instruction was appropriate.  Since appellant made a proper request, the trial court erred in denying appellant's requested instruction.  Appellant's second ground of review is sustained.

	When it overruled appellant's contention, the Court of Appeals' reliance upon Ruiz, supra, was misplaced.  In that case, the defendant was charged with the murder with malice of his girlfriend.  The defendant took the stand in his own defense, and testified that he was separated from his girlfriend, Sara, because she was having an affair with another man.  On the day of the murder, the defendant saw Sara drive away in her car.  He followed in his car, and when he drove alongside of her car, she shouted:  "If you don't like it, you dumb ass," and then laughed.  At that point, the defendant lost control of his feelings, took out a gun and shot her.  In response to this testimony, the State presented evidence that the defendant and Sara had separated because the defendant had raped Sara's daughter, and that the defendant had shot Sara in revenge for "throwing him out of the house."

	On appeal, the defendant argued that the trial court erred by instructing the jury that the evidence of the rape could be considered only for impeachment purposes.  This Court held that the evidence regarding the reasons for the defendant's and Sara's separation was admissible to establish the defendant's state of mind at the time of the offense and to rebut the defendant's testimony on the issue.  Commissioner Dally, writing for the Court, stated:

	"The complained of evidence was admissible even though it showed an extraneous offense.  Since the admission of the evidence was proper to rebut that offered by the appellant, there was no need for a charge limiting the jury's consideration of the testimony.  The error in giving a charge limiting the jury's consideration of the testimony to impeachment purposes was an error against the state and the appellant is therefore in no position to complain."

	Id., at 694.

	In Ruiz, supra, the evidence was admissible to prove a main fact in the case:  the defendant's state of mind at the time the offense was committed.  Thus, a limiting instruction was not necessary.  That the trial court gave a limiting instruction was not reversible:  the error weighed against the State, and the defendant was not harmed.  Since in the instant case, the evidence of appellant's prior record was not relevant to any main fact in the case and was offered solely for impeachment, the Ruiz case does not apply.

	We will now address appellant's first ground of review, that the Court of Appeals erred in finding that the instruction given by the trial court was a sufficient substitute for appellant's requested instruction.  The language used in the given instruction was taken from Art. 38.03, V.A.C.C.P., which sets forth the presumption of innocence.  See also V.T.C.A. Penal Code, § 2.01.  This instruction did not limit the jury's consideration of the evidence of extraneous offenses to the purpose for which that evidence was offered.  See Crawford, supra at 907 citing Hitchcock and Bates, supra.  Rather, the given instruction instructed the jury in what manner it could not consider the evidence. Since the given instruction did not properly limit the jury's consideration of the extraneous offenses, it was not a proper substitute for appellant's requested charge.  Appellant's first ground of review is also sustained.

	Having found that the trial court erred in the case before us by failing to properly instruct the jury that the evidence of appellant's prior record could be considered only for a limited purpose, we must now consider any harm attributable to such error.  In Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985), we held that if the error in the charge was the subject of a timely objection, then reversal is required if the error caused the defendant "some" harm.  See id. at 171.  The Court of Appeals did not apply the holding in Almanza, supra, because it found that the trial court did not err.  Since we have determined that the charge should have been given, this case must be remanded to the Court of Appeals for an assessment of harm to appellant in light of the holding in Almanza, supra, and a determination of whether the case should be affirmed or reversed.  See Shannon v. State, 698 S.W.2d 153 (Tex.Cr.App. 1985).

	Thus, the judgment of the Court of Appeals is vacated and the cause is remanded to that court.

	In Henley v. State, 387 S.W.2d 877, 882-884 (Tex.Cr.App. 1965) (reh'g op.), the court said:
	In our prior opinion we held that the witness Alene Joseph had not been impeached and cited as authority Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106.  Upon further examination of Lopez we find the rule there expressed as follows:  "To constitute impeachment of which the appellant complains, it wold be necessary for the State to support the predicate laid, either by the introduction of the written statement or by an affirmative showing that the written statement contained such matter."  We now re-examine the record before us in the light of this rule.  When the witness Joseph, while being examined by the State, first denied that appellant had brought a package to her house (a fact which was necessary for the State to prove in order to make its case) she was asked if she had given "this statement."  To this she replied, "No sir, I didn't, but I signed my name."  She then testified that after signing the statement she had refused to talk to the prosecutor.

*****

	It is now apparent from the above that this constituted "an affirmative showing that the written statement contained such matter," and the witness was actually impeach.

	This brings us to the question of the Court's charge which we have not heretofore discussed.  In appellant's objections to the charge we find the following two paragraphs:

"In addition the defendant objects to said instruction because it is not complete and requests the Court to further instruct the jury that they are not to consider any prior statement made by the witness, Alene Joseph, as any proof that said testimony was not true, or a proper instruction embracing this last principle of law."

* * * * *

"The defendant objects to the court's charge because same fails to withdraw from the evidence the questions and answers concerning a prior statement made by the State's witness Alene Joseph, and here and now requests the court to give a proper instruction withdrawing from the evidence all attempted impeachment of the said witness by the State."

	The court failed to respond to either objection.  In Hall v. State, 164 Tex.Cr.R. 142, 297 S.W.2d 685, we had occasion to discuss fully the law relating to the court's charge in cases where a State's witness has been impeached.  There we quoted with approval a charge which was given in Carroll v. State, 143 Tex.Cr.R. 269, 158 S.W.2d 532, as follows:

"You are further instructed that the testimony of the witness, E.D. Cartwright, regarding the statements of the witnesses Frank Carroll and Mrs. Frank Carroll, was admitted for the purpose of impeaching the said witnesses, Frank Carroll and Mrs. Frank Carroll, if you find that it does impeach them, and you cannot consider said impeachment testimony as any evidence whatever of the guilt of the defendant."

	We have now concluded that appellant's objections clearly pointed out to the court the defect in his charge and that he fell into error in not responding to such objections.

	Having so concluded, appellant's motion for rehearing is granted, the judgment of affirmance is set aside and the judgment is now reversed and remanded.

		It is so ordered.

	Paul McClung wrote in Jury Charges For Texas Criminal Practice (Revised Edition 1992) at p. 286 : Limiting Use by the Jury of Impeachment Evidence:
	Contradictory Statements:  "You are instructed that a witness may be impeached by showing that he or she has made other and different statements out of court from those made before you on the trial.  Such impeachment evidence may be considered by you to aid you in determining (if it does so) the weight, if any, to be given the testimony of the witness at trial and his or her credibility; but such impeaching evidence, if any, is not to be considered as tending to establish the alleged guilt of the defendant in such case.  (Marek 94 SW 469; see also Lawhon 284 (2) 730) Therefore, you are further instructed that the testimony of the witness, EDC, regarding the statements of the witnesses Frank C and Mrs. Frank C. was admitted for the purpose of impeaching the said witnesses, Frank C and Mrs Frank C, if you find that it does impeach them, and you cannot consider said impeachment testimony as any evidence whatever of the guilt of the  defendant."  Carroll 158 SW (2) 532 approving the charge.  See also Hall 297 (2) 685; Henley 387 (2) 877, 882; Stutes 530 (2) 309.  See Goodman v State, Tex Cr. 665 SW (2) 788, 792 note 2; Wall v State, Tex Cr, 417 SW (2) 59, 62; Richardson v State, Hou-1 App, 751 SW (2) 663.

	NOTE:  Where the prosecutor reads from a written statement in a manner reflecting that the witness did make the statements concerning which he is being interrogated, even though witness denies making such statements, the trial judge should give the limiting charge, since the appellate court considers the witness to have been impeached by reason that there has been an affirmative showing that the written statement contains such matter inquired about.  Henley v State, 387 SW (2) (reversing), and see Contreras v State, SA App, 766 SW (2) 891.

	In Rodriguez v. State, 781 S.W.2d 443, 445-446 (Tex.App.-Fort Worth 1989, pet. ref'd), the court reversed for a new penalty hearing under Article 44.29(b), V.A.C.C.P. (1989), saying:
	Generally, an instruction limiting a jury's consideration of certain evidence is not required when the evidence is admissible to prove a main fact in the case.  Porter v. State, 709 S.W.2d 213, 215 (Tex.Crim.App. 1986).  If, however, evidence is offered for a specific purpose, the defendant is entitled upon proper request to a charge limiting the jury's consideration of that evidence to the purpose for which it was offered.  Id.  If the trial court fails to give such a proper limiting instruction, reversible error arises.  Id. at 216.

	We have found that the evidence of extraneous offenses admitted into evidence in this case was properly admitted to explain the reason why the complaining witness was not forthcoming to authorities with respect to the conduct of Rodriguez.  The evidence was not admitted to prove any main fact issue in the case.  Accordingly, we sustain Rodriguez's point of error number two.

	In Crossman v. State, 797 S.W.2d 321, 326 (Tex.App.-Corpus Christi 1990, no pet.), the court reversed the trial court's judgment regarding punishment for aggravated sexual assault and remanded for a new trial on punishment, saying:
	By his fourth and fifth points of error, appellant complains of error in the punishment phase of trial.  By his fifth point of error, appellant contends that the trial court erred when it refused to include a limiting instruction in the charge regarding the unadjudicated extraneous offenses.  Appellant was entitled to a limiting instruction regarding those offenses.  See Rodriguez v. State, 781 S.W.2d 443, 445 (Tex.App-Fort Worth 1989, pet. ref'd).  Refusal to grant such a request for a limiting instruction results in reversible error.  Id.  The State concedes error on this point and requests a new punishment phase.  Appellant's fifth point of error is sustained.

DEFENDANT'S REQUEST FOR NOTICE OF STATE'S INTENTION TO
INTRODUCE EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS
(ADJUDICATED OR UNADJUDICATED) IN STATE'S
CASE-IN-CHIEF AT NOT GUILTY PHASE

TO THE PROSECUTOR OF ABOVE CASE:
	The above defendant makes this Request, saying:
A.	Under Tex.Evid.Rule 404(b) Defendant moves the prosecutor to give written notice in advance of the day of trial of the State's intent at the not guilty phase to introduce evidence of other crimes, wrongs or acts (adjudicated or unadjudicated) in the State's initial case-in-chief; and the defendant moves the Court to require the prosecutor to give all such notice a reasonable time prior to the day of trial.
B.	As to each and any other such unalleged crimes, wrongs or acts, Defendant specifically requests notice of:
(1)	name of alleged victim;
	(2)	date of alleged occurrence;
(3)	county of the alleged occurrence;
(4)	description of the alleged occurrence; 
	(5)	all details of the alleged occurrence;
	(6)	all Brady/Kyles information about that event; and
	(7)	name and address of each witness to the alleged occurrence.

REQUEST FOR NOTICE OF
STATE'S INTENTION TO INTRODUCE EVIDENCE OF OTHER CRIMES,
WRONGS OR ACTS (ADJUDICATED OR UNADJUDICATED)
AT PENALTY UNDER ARTICLE 37.07

TO THE PROSECUTOR OF ABOVE CASE:
	The above defendant requests Notice of State's Intention to Introduce Evidence of other Crimes, Wrongs or Acts (Adjudicated or Unadjudicated) at penalty phase under Article 37.07, V.A.C.C.P. and in support would show:
A.	Defendant moves the prosecutor to give notice in advance of the day of trial of the State's intent to introduce evidence of other crimes, wrongs or acts (adjudicated or unadjudicated) in punishment pursuant to Article 37.07, V.A.C.C.P.; and the defendant moves the Court to require the prosecutor to give all such notice prior to the day of trial.
B.	As to each and any other crimes, wrongs or acts, Defendant specifically requests notice of the following:
(1)	name of alleged victim;
	(2)	date of alleged occurrence;
(3)	county of the alleged occurrence;
(4)	description of the criminal statute violated in the alleged occurrence; 
	(5)	all witnesses to the alleged occurrence; and
	(6)	all details of the alleged occurrence.

MOTION TO SUPPRESS EVIDENCE
	_____________________ is the defendant in the above cause. 
I.
	Pursuant to Tex.R.App.P. 33.1(a), Tex.R. Evid. 103(a) and (b) and Texas Code of Criminal Procedure (TCCrP) Articles 28.01 and 38.23(a), the above defendant moves the Court to suppress the following:
1.	All evidence of any sort seized as a result of any search of Defendant's person, automobile, apartment, house, papers, effects, films, firearms, gun cases, ammunition, casings, possessions, other personal property, or of any other area, thing, place or person in which Defendant had a legitimate expectation of privacy;
2.	All statements, oral or written, and any actions made by Defendant at the time of and after Defendant's apprehension by law enforcement officers or their agents;
3.	All statements, property and evidence obtained as a result of any stop, detention, arrest, interrogation, questioning or conversing with this Defendant;
4.	All statements, property and evidence obtained as a result of the stop, frisk, detention, arrest, seizure, or search of this accused, his/her residence, property or motor vehicle;
5.	All photographs taken of defendant after defendant's apprehension, as well as any identification of Defendant by any person, whether as a result of a line-up, one man show-up, or photographic spread;
6.	All evidence of any sort obtained as a result of an alleged consent allegedly given by defendant to law enforcement concerning any of defendant's property, vehicle or abode; and/or
7.	All evidence of any sort obtained as a result of an alleged consent by a third party given to law enforcement concerning any of defendant's property, vehicle or abode; and/or
8.	All testimony of any person related in any way to the matters set out above, as well as all evidence derived directly or indirectly from the above illegally obtained evidence.
II.
	The Court should suppress said evidence because:
9.	Involuntary were this accused's admissions to persons in authority, for same were the result of said authority person's direct or implied promises of leniency, favorable treatment, or positive benefit to this accused.
10.	Illegally this accused was stopped, frisked, detained, interrogated, arrested and defendant's person, property and/or motor vehicle were searched and defendant's statement obtained without authority of a warrant or of reasonable suspicion or of probable cause.
11.	If such arrest, search or seizure were made upon a warrant of arrest or search, the warrant was invalid and its supporting affidavit alleges insufficient or stale facts to establish probable cause.
12.	At the time of various conversations with certain government agents, this accused was either under arrest or substantially deprived of his freedom by the attendant conduct of the officers and the surrounding circumstances, and this accused had neither been adequately instructed concerning nor had validly waived each of his rights as required by Miranda v. Arizona and applicable federal and state law.
13.	This accused's conversations and statements were involuntary and coercively enticed from this accused.
14.	This accused was entrapped or illegally wiretapped and his telephone illegally electronically surveilled.
15.	This accused did not voluntary consent to any officer's search or looking around in this accused's residence, vehicle, area, place, thing in question; and no one else could have given valid consent for such search which resulted in the officer's challenged seizure.
16.	Inadmissible under the "fruit of the poisonous tree" doctrine is all evidence obtained during said detention, search, and seizure including each of this accused's oral or written statements, if any.
17.	Any statements of or actions allegedly by Defendant were the result of an illegal stop, detention, and/or arrest which occurred without reasonable suspicion, probable cause, and a valid warrant, in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution, Article I, Section 9 of the Texas Constitution, and TCCrP Articles 14.01 to 14.06, and/or 15.01 to 15.27.
18.	Any photograph or identification of Defendant was obtained as the result of an illegal stop, detention, and/or arrest in violation of the constitutional and statutory provisions set forth in the above paragraph.  In addition, Defendant would show that any identification made by any person violated the Sixth and Fourteenth Amendments to the U.S. Constitution as well as Article I, Section 10 of the Texas Constitution or violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution as well as Article I, Section 19 of the Texas Constitution.
19.	Defendant has standing to object to the search and seizure in question and may object to the government's use against him of the fruits of the search in question and seizure of tangible property, since they were fruits of an unauthorized search either of a house, property and/or vehicle that was defendant's or that defendant was a guest in. 
20.	The fruits of defendant's arrest should be suppressed pursuant to Article 38.23 of the TCCrP, since Defendant was unlawfully arrested by one or more law enforcement officials and that arrest is contrary to and violates: 
 	(a)	Chapter 14 of the TCCrP;
 	(b)	Chapter 15 of the TCCrP;
(c)	all Texas statutes dealing with arrests;
(d)	Article I, Section 9 of the Texas Constitution; and
(e)	the Fourth and Fourteenth Amendments to the U.S. Constitution;
20.	The fruits of the stop, detention, seizure, search, and questioning of defendant, and/or property which he had an interest in, should be suppressed pursuant to Article 38.23 of the TCCrP, since Defendant was unlawfully detained by one or more law enforcement officials and that detention is contrary to and violates: 
 	(a)	Chapter 14 of the TCCrP;
 	(b)	Chapter 15 of the TCCrP;
(c)	Texas legislative statutes, which permit official restraint on a person's freedom of movement based only on probable cause, for Texas statutes and fail to authorize "temporary stop or detention" even where considering the totality of the circumstances, the officer(s) can articulate sufficient factually based reasonable suspicion to detain and pat down a suspect under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for the Texas statutes, which do not authorize such temporary "restraints on liberty," are more restrictive than the Fourth Amendment's federal constitutional standards found in various precedents of the U.S. Supreme Court beginning with Terry v. Ohio;
(d)	Article I, Section 9 of the Texas Constitution; 
(e)	the Fourth and Fourteenth Amendments to the U.S. Constitution; and
(f)	the rule this would have been valid if the officer could articulate a reasonable suspicion that the suspect is dangerous and may obtain immediate control of a weapon; but nothing suggests a weapon's presence or defendant's dangerous.
21.	As to the property and place in question and defendant's contents in the place searched, Defendant not only had a reasonable expectation of privacy that said place and said contents would be free from governmental intrusion;but defendant also exhibited an actual subjective expectation of privacy in the constitutionally protected residence, place, area, vehicle, thing and/or body illegally searched and did not voluntarily and freely consent to any detention or search  by any police officer, after defendant obtained permission from his relative to leave his vehicle in and did leave his vehicle parked in the yard of and in the curtilage of that relative's residence where the police later searched said vehicle, though defendant had the only key(s) to that car and its trunk.
22.	Any seizure and/or search of any place, area, and/or thing in which Defendant had a reasonable expectation of privacy, was made without reasonable suspicion or probable cause and without a valid warrant, in violation of the Fourth and Fourteenth Amendments to the United Stated Constitution, Article I, § 9 of the Texas Constitution, and TCCrP Articles 18.01 to 18.16 and 18.20 to 18.21.
23.	From the defendant's residence and/or vehicle, law enforcement seized contraband after arresting defendant and subsequently obtaining consent to search defendant's property and vehicle from a third person who as effective against defendant, was unauthorized to so consent to said search of defendant's property, which was not abandoned, for over said vehicle defendant had not relinquished all right, title, claim, and possession, with the intention of not reclaiming it or resuming its ownership, possession or enjoyment.  Such third party consent raises these issues among others:  (i) whether the third party's consent should be effective against the defendant only if there were amicable relations between them at the time; (ii) whether such consent should be effective when not given following defendant's specific request or order to the third party not to consent; (iii) whether a third party's consent should be effective when the police could have sought out and asked the defendant for his consent; (iv) whether the effectiveness of a third party's consent is dissipated by the defendant's prior or contemporaneous refusal to grant consent; (v) whether a third party's consent to search shared premises may extend to particular areas used only by the defendant; (vi) whether the effectiveness of a third party's consent depends upon the actual state of the surrounding circumstances or instead upon the circumstances as reasonably perceived by the police; and (vii) whether the effectiveness of a third party's consent depends upon the actual state of the surrounding circumstances or instead upon the circumstances as reasonably perceived by defendant. 
24.	At the time, place and occasion in question, Defendant had an expectation of privacy which society is willing to recognize, for Defendant was:
(a)	the passenger or driver in a motor vehicle in which Defendant had a right to be that was illegally stopped; after which defendant was illegally detained and illegally interrogated, and illegally arrested; 
(b)	present at place where Defendant had a right to be; and
(c)	the resident in or guest at a residence in which Defendant had a right to be.
25.	No exception to the exclusionary rule is applicable herein under federal law.
26.	No exception to the exclusionary rule is applicable herein under Texas law.
27.	The search in the instant case does not fall within any recognized exception to the warrant requirement of the U.S. Constitution's Fourth Amendment and the Texas Constitution's Article 1, § 9.
28.	Inadmissible under the "fruit of the poisonous tree" doctrine is all evidence obtained during said above described search, seizure and detention.
29.	The law enforcement officer's decision to stop, detain, interrogate, search and/or arrest was based on racist reasons depriving defendant of his right to equal protection of and due process of law guaranteed by the Fourteenth Amendment to the U.S. Constitution.
30.	Under the federal exclusionary rule and/or TCCrP, Articles 1.05, 38.21, 38.22 and/or 38.23, inadmissible is all evidence and/or any testimony relating to such evidence, described in each of the above paragraphs of this motion.
31.	For the above reasons and grounds, this accused objects to the judicial admission of any evidence hereby sought to be suppressed since such admission would be violative of this accused's rights both under the IV, V, VI, and XIV Amendments to the U.S. Constitution, and under Article 1, Sections 9, 10, 19 of the Texas Constitution and under applicable federal and state law.

MOTION TO SUPPRESS IMPROPER PROSECUTORIAL CONDUCT
	("Is another witness lying?")
	Defendant submits that the trial court should not permit or condone any prosecutorial inquiry of and argument about the opinion of a witness as to the truth or falsity of other witness testimony.
	By asking that type of question, the prosecutor violates "the Rule" in both Tex.Evid.Rule 614 that witnesses (other than defendant) cannot hear the testimony of other witnesses and TCrPC art. 36.05 that witnesses shall not be allowed to hear any testimony in the case.  Additionally the prosecutor by so inquiring, makes an improper and argumentative inquiry, illegitimately cross-examines outside of the rules of evidence, invades the province of the jury, injects a prejudicial matter that is irrelevant, improperly makes the testifying witness compare his testimony to that of another, places the testifying witness under the obligation to call "somebody a liar," may not ask for the opinion of a witness as to the truth or falsity of other testimony, and deprives accused of his federal and state constitutional presumption of innocence and due process rights to be heard, to have his testimony treated like any other witness, to present evidence in his behalf and to have a fair and impartial trial.  On those grounds, defendant objects to this case's prosecutor asking questions herein similar to: 
1.	"Was officer mistaken in saying you had a strong alcoholic odor?"
2.	"Was officer wrong in talking about your incoherent speech?"
3.	"Is the state witness' contradictory testimony, fallacious?"
4.	"Is any specific witness lying?"
5.	"Are all witness except you lying?"
	Under Creech v. State, 168 Tex.Cr.R. 422, 329 S.W.2d 290 (1957), defendant moves the court to enter an Order, prohibiting the State during direct or cross examination from propounding any improper question which because of testimonial discrepancies:
1.	in effect asks:  "Is the state witness' contradictory testimony, fallacious?";
2.	compares testimony of a previous trial witness with that of the testifying witness; and/or
3.	calls for the testifying witness to decide whether a previous trial witness was testifying in this case truthfully or untruthfully.
SUPPORTING MEMORANDUM

	In Creech, supra at 291, the Court said:

	"The appellant, testifying in his own behalf, stated that he had had nothing to drink on the night in question, that he had demanded a blood test after his arrest, and that the same had been refused.  He stated that the officer was in error in his testimony as to the place of arrest.  On cross examination the appellant was asked if, because of the above discrepancy in their testimonies, he would say that the officer was lying, and he answered in the affirmative.  Appellant stated further that he was not a resident of the county where the prosecution was had.

	"Other officers were called in rebuttal and testified that the appellant smelled of intoxicants the following morning.

	"The sufficiency of the evidence is not challenged and we hold it sufficient to support the verdict.

	"Bill of exception No. 1 complains of the refusal of the trial court to permit the appellant to call four witnesses to prove that his reputation for truth and veracity was good.

	"Branch's Ann.P.C. 2d Ed., sec. 206, pp. 232 and 233, sets forth two rules, both of which are supported by authority.  They are as follows:

1.	`If the witness is in the situation of a stranger and is assailed on cross-examination by questions attacking his credibility and tending to bring him into disrepute before the jury, he may be sustained by proof of his general reputation for truth.'

2.	`Proof of the general reputation of defendant or of any other witness for truth is not admissible where no attack has been made on the witness, but there is a mere contradiction between witnesses, or confusion in the statements of the witness.'

"We must determine under which rule the case at bar fall."

	*****

	"In the case at bar we have merely the conflict in the testimony of the officer and the appellant as to the request for the blood test and the place of arrest.  The question propounded on cross-examination was improper.  However, when the appellant said that the officer was lying, he was merely saying that his version of the affair was correct and that of the officer incorrect.  We see nothing in such answer which would tend to bring him into disrepute with the jury.  See Rodriguez v. State, Tex.Cr.App., 305 S.W.2d 350."
FIRST ARGUMENT
	The question is not whether or not defendant will be harmed or injured before the jury by his/her being forced to testify that the officers were mistaken.  	Regardless of the conflicting testimony, the question is whether a prosecutor commits error by in effect inquiring of defendant:  "Is the state witness' contradictory testimony, fallacious?"
	Regardless of the conflicting testimony, the question is whether a prosecutor commits error by in effect inquiring of any witness other than defendant:  "Is the state witness' contradictory testimony, fallacious?"
	The latter instance is a direct violation of the "Rule."  Under Tex.Evid.Rule 614 witnesses (other than defendant) cannot hear testimony of others.  Under TCrPC art. 36.05, witnesses shall not be allowed to hear any case testimony.
	In Streff v. State, 890 S.W.2d 815, 819-821 (Tex.App.-Eastland 1994, no pet.), the court found this "lying" error harmless, for given the contradicting testimonies, beyond a reasonable doubt, the single question made no contribution to either the conviction or the punishment.  See Tex.R.App.P. 81(b)(2); Harris v. State, 790 S.W.2d 568, 587 (Tex.Cr.App. 1989). 
	In Ayala v. State, 352 S.W.2d 955 (Tex.Cr.App. 1962), a question propounded to an accused, "In other words, the officers were mistaken when they say that you had a strong odor of intoxicating beverage coming from your mouth,"could not have injured defendant before the jury though defendant answered the officers were mistaken, after three officers described his numerous symptoms of intoxication before defendant testified as to drinking no alcohol.
	In Salcido v. State, 342 S.W.2d 760 (Tex.Cr.App. 1961), court noted objection should have been sustained but found error harmless, where defense objected to cross-examining himself if a witness to the contrary had told the truth.
	In Creech v. State, 329 S.W.2d 290 (Tex.Cr.App. 1959), a question propounded to an accused under similar conflicting testimony, on whether he would say an officer was lying, was held not to be prejudicial in a DWI case.
	In Reyes v. State, 741 S.W.2d 414, 420-423 (Tex.Cr.App. 1987), the court found harmless error but held the prosecutor should not have been allowed to read the perjury statute to the defendant before the jury.  That Reyes court also said:

	It is well established that the scope of cross-examination is subject to the sound discretion of the trial court.  (Citations omitted.)  

	And where there is an irreconcilable conflict between the testimony of the prosecution and the testimony of the defendant, considerable latitude should be allowed in cross-examination of the defendant.  (Citation omitted.)

	It is well established that when a defendant in a criminal case voluntarily takes the witness stand in a trial on the merits on his behalf he occupies the same position and is subject to the same rules as any other witness.  He may be contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness, except where there are overriding constitutional or statutory provisions.  (Citations omitted.) 

 	"Thus, when an accused voluntarily elects to so testify he subjects himself to any legitimate cross-examination within the rules of evidence."  Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App. 1971).

	And when the defendant testifies he puts his credibility into issue, Hughes v. State, 92 Tex.Cr.R. 650, 245 S.W. 440 (App. 1922), and that credibility may be attacked.  (Citation omitted.)

SECOND ARGUMENT (QUOTES THIS BELOW ARTICLE)

RICO Report contained in NCDLA's The Champion p. 55 (December 2004)

Some Prosecutors Just Don't Get It: Improper Cross and Vouching
By Barry Tarlow

	The abuses that accompany excessive prosecutorial zeal are no surprise. Experience has demonstrated that judicial “tongue-clicking” is not a solution. See generally United States v. Agee, 597 F.2d 350, 371 (3d Cir. 1979) (Gibbons, J., dissenting) (deriding “tongue-clicking”); United States v. Serubo, 604 F.2d 807, 817–18 (3d Cir. 1979) (same); United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir. 1946) (Frank, J., dissenting) (“If we continue to do nothing practical to prevent [prosecutorial mis]conduct, we should cease to disapprove it . . . . Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking.”). 

	One would assume that reversals for prosecutorial misconduct would send a loud and clear message. Strangely enough, reversals and strong admonishments at times have failed to curb improper practices. This pattern of behavior reinforces the wisdom set out by Justice Jackson that the greatest danger to individual rights and liberties is from a misguided zealot in search of a righteous cause. See generally Harris v. United States, 331 U.S. 145, 198 (1947) (Jackson, J., dissenting) (“In view of the readiness of zealots to ride roughshod over claims of privacy for any ends that impress them as socially desirable, we should not make inroads on the rights protected by this [Fourth] Amendment.”); see also The Supervisory Power to Dismiss: An Essential Solution to the Problem of Prosecutorial Misconduct, 20 CACJ Forum at 18 (Dec. 1993) (“Potentially the most powerful deterrent to prosecutorial wrongdoing is the trial and appellate courts’ exercise of their inherent supervisorial power to dismiss a case.”). 

	A common prosecution cross-examination tactic is to attempt to force the accused to evaluate the truthfulness of testimony previously presented by the agents or other citizen witnesses. After the defendant declares that one or more prosecution witnesses has testified falsely, the prosecution often exacerbates the impact of the improper cross-examination by vouching for the credibility of its witnesses during closing argument. Both of these tactics amount to misconduct. With them, prosecutors cross the line of aggressive advocacy and become partisans. They are fundamentally unfair, but  they unfortunately occur far too often. Indeed, perhaps the reason that these types of, errors occur so often is that improper prosecutorial cross-examination and vouching have been so widespread for so long that many defense lawyers and judges have become conditioned to believing they are appropriate. 

	Since some trial courts respond to these tactics with no more than tongue-clicking, the ultimate question is, When does this type of improper cross-examination with or without vouching invalidate a conviction? In the past few years the Ninth Circuit, along with its sister circuits, has taken a stronger stand against this cross-examination tactic and prosecutorial vouching. In 1999, a panel reversed the conviction in United States v. Sanchez, 176 F.3d 1214 (9th Cir. 1999), and a year later United States v. Henke, 222 F.3d 633 (9th Cir. 2000) was decided. Both cases concluded that it is improper for a prosecutor to force a defense witness to evaluate the truthfulness of another witness’s testimony. 

	One would have thought that prosecutors surely would have gotten the message. Surprisingly, the recent decision in United States v. Combs, 379 F.3d 564 (9th Cir. 2004) — reviewing a trial that began about two years after Henke — involved even more egregious tactics than those condemned in Henke. In Combs, the same type of improper cross-examination took place, but this time it was combined with prosecutorial vouching. The panel concluded that each of these errors was so obvious and prejudicial as to provide an independent basis for reversal. 

	The opinion provides a backdrop for reviewing recent developments in response to these two types of prosecutorial overreaching, as well as the applicable standards of review. 

Catching the Good Guys in Combs

	After an eighteen-month investigation into the activities, books and records of Dale Roy Combs, DEA agents found nothing. But that didn’t save the 50-year old machine shop owner from prosecution. Combs had earlier refused to post bail for an employee, Earl Floyd. Bearing a grudge, Floyd sold him two oil drums and also became an informer. When Combs wanted to dispose of the barrels a few months later, he asked Floyd to do it and to wipe the drums clean. The employee promptly took the barrels to law enforcement officers. Although the DEA agents found nothing but oil in one barrel, they claimed they found trace amounts of unusable methamphetamine, plastic tubing and broken glassware in the other barrel. 

	Strangely, the agents did not preserve the evidence for the trial. They waited more than a year to arrest Combs and to charge him with making and distributing methamphetamine. United States v. Combs, 379 F.3d at 566. When they finally interviewed Dale Combs, he admitted that he knew one barrel contained methamphetamine waste, that he had earlier paid the employee to dispose of the waste and that he could purchase the materials necessary to make methamphetamine. According to DEA Special Agent Kent Bailey, Combs also admitted to manufacturing the drug, but Combs vigorously denied ever making the statement. No one else was present during the comment. The only similar testimony came from a jailhouse informer who of course received a deal in his own case in exchange for the testimony. 

	Given the lack of physical and documentary evidence and the motives of the informers to lie, the case boiled down to a credibility contest between Dale Combs and Agent Bailey. Combs testified that he did not admit to making any drugs, that in fact he never made or used illegal drugs and that all the methamphetamine waste came from an old laboratory run by his brother, who had been convicted two years earlier. 

	On cross-examination, the prosecutor asked, Hadn’t Combs admitted the crime to Agent Bailey? Combs denied making this statement. The AUSA then asked, “So are you saying that Special Agent Bailey is lying in his testimony?” Id., at 567. Without objection, Combs said yes, the agent was lying. Not satisfied, the prosecutor pressed the same issue. In response, Combs insisted that the agent’s typed summary of the statement did not accurately reflect Combs’s words. Judge Nora M. Manella — an extremely bright and ordinarily well prepared judge who apparently had not read this portion of the Henke opinion — then jumped into the act. She instructed Combs not to veer from the question, insisting that he discuss only Bailey’s testimony. Combs remained steadfast that Agent Bailey was lying. 

	In the closing arguments, the issue arose yet again. Perhaps sensing the weakness of her case, AUSA Cheryl O’Connor Murphy vouched for the credibility of her key witness in closing argument — at first subtly and then outright. Speaking to the jury, she said, “The defendant claims Special Agent Bailey is lying. Ask yourselves, ladies and gentlemen, who has the motive to lie here, the defendant or Special Agent Bailey . . . ?” Id. The jury probably had little trouble answering that question. In response, Combs’s counsel argued that Agent Bailey surely had a motive to lie, saying “you don’t keep getting [job] promotions when you go into homes or business establishments after an 18-month investigation and you find nothing.” Id., at 568. In rebuttal, the prosecutor vouched for her witness: 
	Most of all, ladies and gentlemen, you have to believe that Special Agent Kent Bailey is a liar. If you believe the defendant’s version of events, you have to believe that Special Agent Kent Bailey walked up to that witness stand, swore to tell you the truth, and perjured himself. . . . [Y]ou can be darn sure that he would get fired for perjuring himself. Id. No objection was made to any of these comments. 

Between a Rock and a Hard Place: Cross-Examinations Requiring A Charge of Lying 

	In this case, not only the prosecutor was at fault. Defense counsel did not object, and the trial judge facilitated the improper cross-examination. At least under federal law, the error should be obvious. The Combs court emphatically reiterated that a prosecutor engages in misconduct by forcing a defendant to call a testifying government agent a liar. The same result had been reached in United States v. Sanchez, supra, 176 F.3d 1214, and later in United States v. Geston, 299 F.3d 1130 (2002), as well as in cases in other circuits. See United States v. Sullivan, 85 F.3d 743 (1st Cir. 1996); United States v. Boyd, 54 F.3d 868 (D.C. Cir. 1995); United States v. Richter, 826 F.2d 206 (2d Cir. 1987). For a more thorough review of the latter three cases, as well as the state court decisions that differ, see Can a Prosecutor Ask a Defendant on Cross If a Witness is Lying?: RICO Report, The Champion (Jan./Feb. 2002). 

	The decision as to whether a defendant should testify is at times extremely difficult. See Wilson v. United States, 149 U.S. 60, 66 (1893) (“It is not everyone who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not everyone, however honest, who would therefore willingly be placed on the witness stand.”). 

	The process puts the accused at the risk of enduring a potentially embarrassing, unnerving and manipulative attempt to distort testimony, recollection, personal background and often the facts of the case. In addition, a defendant faces the one-strike rule. Unlike the manner in which jurors evaluate the testimony of almost any other witness, one meaningful mistake is all that is required for a jury to conclude the defendant is lying and must be guilty. The decision to testify would be even more perilous if the defendant faced a cross-examination in which the prosecutor could require him to judge the credibility of pieces of testimony offered by other witnesses — especially government agents. The convenient argument then becomes, Everyone is lying except the defendant, and who else has a better motive to lie? 

	Prosecutorial misconduct, in this situation, is not limited to staging credibility contests between testifying defendants and government agents. This type of cross-examination is improper and misconduct when a civilian witness is involved. See United States v. Sullivan, 85 F.3d at 750 (“The rule [barring this type of cross-examination] only applies, the prosecution says, when the other witness is a police witness, not a lay witness. We make no such distinction, nor does the Second Circuit.”). 

	In United States v. Henke, 222 F.3d at 635, for example, corporate executives were charged with securities violations, including securities fraud, insider trading, making false statements to SEC investigators and conspiracy. The trial became a credibility contest between the defendants and other executives as to just what the defendants knew about a false revenue reporting scheme and when did they know it. During cross-examination, the government forced one defendant, Chief Executive Officer and Chairman of the Board Chan Desaigoudar, to say the prosecution witnesses were lying. The panel found this to be an error that must not be repeated upon retrial. See Can a Prosecutor Ask a Defendant on Cross If a Witness is Lying?: RICO Report, The Champion 58–59(Jan./Feb. 2002). 

	A more colorful example arose in United States v. Sanchez, supra, 176 F.3d 1214. There, a couple, Steve Denton and Dana Jo Thompson, became fugitives when agents sought to arrest them for attempting to manufacture methamphetamine. When they were caught, it was business as usual. They received leniency in exchange for rolling against Charles Sanchez and the other people accused of helping them avoid apprehension. Denton became the AUSA’s key witness. The prosecution essentially asserted that the couple was only able to stay on the lam because Sanchez bought methamphetamine from them and occasionally drove them around. Only Denton said that Sanchez knew of his fugitive status. None of the other witnesses testified that Sanchez had any knowledge of that status, and there was no other significant evidence of knowledge. 

	Guilt or innocence largely turned on whether the jury believed Sanchez or Denton. Among the tactics used to attack Charles Sanchez’s general credibility, the AUSA forced him to call a local police officer a liar in connection with a tangential issue; namely, whether Sanchez had told an officer that he did not know or recognize a photograph of Denton. The purported a statement was previously unreported by the police officer and, even if it occurred, it was consistent with Sanchez’s repeated assertions that he suspected Denton of simply having violated the drug restrictions of his parole. On appeal, the panel concluded that even this forced accusation of lying on a minor matter was prosecutorial misconduct. 

	This type of cross-examination is improper even if a defense witness other than the accused is involved. Just two years ago in United States v. Geston, supra, 299 F.3d 1130, a Ninth Circuit panel found yet a year after Henke that an improper cross-examination required reversal in a case where credibility was important. There, a Department of Defense police officer was accused of using unreasonable force and committing assault with a dangerous weapon ( his police baton) in arresting a drunk naval seaman apprentice. The witnesses vigorously disputed the facts of the arrest, which bore critically on the reasonableness and self-defensive character of the officer’s actions. These other officers who were present at the arrest and assisted in it testified. Petty Officer William Garrett and another Petty Officer Groot described the purported victim’s aggressive behavior, provocation of the use of force and unwillingness to submit to arrest. Other officers differed in their memories of the particular details of the incident. During Groot’s cross-examination, the prosecution persistently asked whether a prosecution witness was lying. Similarly the prosecution forced Officer Garrett to comment on the truthfulness of Groot and other witnesses, as well as to opine whether their recollections were “mistaken.” Id., at 1136. 

	Rejecting this cross-examination tactic, the Ninth Circuit concluded, “[i]n a case where credibility was paramount, it was plain error for the court to allow the prosecutor to persist in asking witnesses to make improper comments on the testimony of other witnesses.” Id., at 1137. It is sufficient to cause a reversal, therefore, that one defense witness is required to call another witness a liar where credibility is critical. See United States v. Sullivan, 85 F.3d at 750 (“counsel should not ask one witness to comment on the veracity of the testimony of another witness”). 

	The basic rationale for the rule is that the jury is in the best position to determine a witness’s credibility and, indeed, it has the right to do so. “The [Supreme] Court has said: ‘The jury [are] the judges of the credibility of the witnesses * * * and in weighing their testimony [have] the right to determine how much dependence [is] to be placed upon it.” Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628 (1944) (quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)), cited in United States v. Richter, 826 F.2d at 208. Determinations of credibility “belong[ ] to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men; and, so long as we have jury trials, they [generally] should not be disturbed in it . . . .” Sartor v. Arkansas Natural Gas Corp., 321 U.S. at 628. Following this logic, the Richter panel reaffirmed that “[d]eterminations of credibility are for the jury,” 826 F.2d at 209, where a prosecutor forced an accused to comment on the truthfulness of an agent who attributed inculpatory statements to him. Likewise, the Boyd court echoed that this improper examination format “infringed on the jury’s right to make credibility determinations,” where a prosecutor asked the accused why the police would fabricate a story contradicting his own. United States v. Boyd, 54 F.3d at 871. It is not the place of a witness “to draw conclusions about or cast aspersions” about another witness’s truthfulness. United States v. Sullivan, 85 F.3d at 746. The question of whether a government witness is lying is quite clearly for the jury, not the judge or the parties, and it is error for the prosecutor to force a defense witness to comment on the subject. 

	Some judges have difficulty seeing what is so prejudicial about asking the defendant whether an agent is lying when, for example, the testimony of two witnesses as to a purported event is in direct contradiction. See, e.g., State v. Hart, 2000 Mont. 332 (2000) (concluding that decision as to whether to permit such questioning is within the discretion of the trial court); Fisher v. State, 736 A.2d 1125, 1163 (Md. Ct. Spec. App. 1999) (stating that when prosecutor forced one defendant to call other witnesses liars, “cross-examination was doing exactly what cross-examination is designed to do”; namely, ferreting out lying). They seem to believe that prosecutorial questions do not really unfairly impinge on any of the jury’s power to determine credibility. Relying on these ideas, and as discussed in Can a Prosecutor Ask a Defendant on Cross If a Witness is Lying?: RICO Report, The Champion 59 (Jan./Feb. 2002), some state courts have refused to impose a categorical ban on this sort of questioning. The rationale of their opinion is: Somebody’s obviously lying, so what’s the harm in asking? 

	One response to that question is to ask, If the contradiction is already obvious and the jury can assess credibility, what’s the benefit in asking? What does the prosecutor gain by pressing the issue? One obvious advantage plays on human psychology. There is a difference between being sincerely, even woefully ignorantly wrong, and lying — intentionally misrepresenting something. To err is human; to intentionally foul things up is not so forgivable. Jurors recognize the difference even when no one articulates it. It’s akin to the sentiment motivating the tone of President Clinton’s “Difference of Opinion” speech to the Democratic National Convention this year. Undecided voters are much more likely to believe that Republican policies are simply, albeit sincerely, mistaken than to believe that Republicans are conniving or mean-spirited or that there’s some “right-wing conspiracy.” The Democrats and Republicans can’t both be right on a given issue, but when the race is close, if you call your opponent a liar, you’re bound to lose some votes. People can accept that the others like them make sincere mistakes more easily than they can accept that others like them are deliberately lying. 

	It is a small linguistic step, but it conceals a huge psychological leap. To the jurors, the accused is often presumptively the “other,” not “like them” and thus harder to trust. For a federal defendant, moreover, the case is at best a close race and often a nearly unwinnable uphill battle. Third, the government brings to its agents and even to many witnesses an often undeserved yet widely recognized air of sincerity, if not authority and righteousness. In this context, forcing a defendant or a defense witness to call the opposition a liar can easily create the obstacle that makes or breaks the case. The prosecutor knows it, and a number of appellate courts have recognized the problem. 

	This tactic is even more damaging when prosecutors use it to confuse the issue. Sometimes, credibility should not cut to the heart of a factual matter in dispute, as in cases involving eyewitness identification. In these cases, the real question is often the accuracy of the witnesses’ observations, not the witnesses’ truthfulness. Eyewitnesses are often viewed as being independent and perhaps mistakenly a generally reliable form of evidence. When their testimony has been presented, the prosecution at times prefers to cast these cases as credibility contests, trying to force the accused to call the eyewitness a liar and hoping that the jury will focus on credibility rather than the reliability of the identification. In this type of case the misconduct is far more egregious. 

Vouchers and Endorsements 

	Combs involved not only improper cross-examination, but also the troubling practice of prosecutorial vouching. Prosecutorial vouching is not only unfair, it is downright improper (whether or not it is reversible). After all, how does the prosecutor ever know if a witness is telling the truth? 

	Prosecutors like to trumpet the truthfulness-provisions that they insert as boilerplate language in plea agreements, and this provides a powerful argument. Prominent New York attorney Jay Goldberg refers to this as the “Sword of Damocles” argument. AUSAs frequently say they have the authority to send the informer to jail forever if he lies, so why would an informer not be truthful? See United States v. Cho, Case No. 96-1608 (2d Cir. May 23, 1997) (discussed below). In reality, however, these provisions do not effectively produce truthful testimony. Federal informers are almost never prosecuted for lying in a way that helps the prosecution. In addition, the motivation for lying is quite simple: If the informer cannot produce incriminating evidence, he will not get the deal. 

	A Massachusetts court has identified this problem with the “Sword of Damocles” argument. In Commonwealth v. Meuse, 423 Mass. 831, 833 (1996), a prosecutor argued to the jury that state troopers were able to tell whether an informer was telling the truth and could force him to do so pursuant to a plea agreement. However, the Supreme Judicial Court of Massachusetts rejected the argument and created one of the better solutions to this problem. The court concluded that “[w]hen a prosecution witness testifies pursuant to a plea agreement containing a promise to tell the truth, and the jury are aware of the promise, the judge should warn the jury that the government does not know whether the witness is telling the truth.” Id., at 832. When the prosecutor also vouches for the witness, the instruction is mandatory. Id.

	In the Ninth Circuit, as in most other jurisdictions, it is well settled that “[a]s a general rule, a prosecutor may not express . . . his belief in the credibility of government witnesses.” United States v. Molina, 934 F.2d 1440, 1444 (9th Cir. 1991). “Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness’s veracity, or suggesting that information not presented to the jury supports the witness’s testimony.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (summarizing numerous vouching cases), quoted in United States v. Leon-Reyes, 177 F.3d 816, 821 (9th Cir 1999). Accordingly, when the prosecutor in Combs stood up and basically asserted that Agent Bailey wouldn’t put his job on the line to concoct a confession and win the case (an argument that history has demonstrated to be patently invalid), she clearly threw both her and the officer’s official authority behind his testimony. This erroneously led the jury to the natural conclusion that any gap in the evidence at trial must be filled by other facts known to the government. 

	The dangers that prosecutorial vouching creates are familiar. When we last discussed the problem in Expert Witnesses and Prosecutorial Vouching: New Frontiers in ‘Soft Expert’ Testimony: RICO Report, The Champion (Sept./Oct. 1997), we noted how vouching abuses the trust that people place in government officers, including prosecutors. As the Supreme Court concluded in Berger v. United States, “It is fair to say that the average jury, in a greater or less degree, has confidence that the[ ] obligations [to serve as a representative of an impartial government and to see that justice is done] . . . will be faithfully observed [by a prosecutor]. Consequently, improper [prosecutorial] suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212 (1960). More recently, in United States v. Young, 470 U.S. 1, 18–19 (1985), the Court said, “such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.”

	Prosecutorial vouching is just part of a larger problem. As provided by ABA Rule 3.4(e), “[a] lawyer shall not . . . in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to . . . the credibility of a witness . . . or the guilt or innocence of an accused . . . .” ABA Ann. Mod. R. Prof. Cond., R. 3.7 (4th ed.); id. Legal Background, at p. 339 (citing Harne v. Deadmond, 954 P.2d 732 (Mont. 1998) (“defense counsel’s improper actions in civil case — personally vouching for credibility of client in closing argument — constituted reversible error”); see generally Bennett L. Gershman, Prosecutorial Misconduct §§ 10: 45–10:48 (2003 ed.) (discussing ways that a prosecutor’s comments essentially become improper testimony). 

	Viewed from a different perspective, vouching presents a compound problem. When a lawyer vouches for the truthful character of a witness, cloaking statements as argument, it really and essentially does one of two improper things. The attorney is attempting either to provide expert opinion testimony without saying so, and expert “opinion evidence regarding a witness’ credibility is inadmissible,” United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998) (citing United States v. Binder, 799 F.2d 595, 598 (9th Cir. 1985); United States v. Awkard, 597 F.2d 667, 671 (9th Cir. 1979)), or to implicitly testify as to facts not otherwise in evidence. In either case, the testimony is improper. Lawyers generally are ethically prevented from being witnesses in the cases they litigate, see ABA Ann. Mod. R. Prof. Cond., R. 3.7 (4th ed.), and such testimony, when necessary, can force withdrawal from a case, see ABA Ann. Mod. R. Prof. Cond., R. 3.7 (4th ed.) R 1.116(a)(1). Therefore, when a lawyer vouches for the credibility of a witness, the vouching essentially — if not technically — breaks three rules: one that outright bans vouching, another preventing the admission of certain opinion testimony and still another against admitting attorney testimony. 

	Why is vouching improper for any attorney? The reason for the outright ban on vouching is that “[t]he procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against . . . improperly influencing witnesses.” ABA Ann. Mod. R. Prof. Cond., R. 3.4 Comment, at p. 331. The reason for the second rule proscribing most expert opinion testimony as to credibility again relates to goal of preserving the jury’s power to determine credibility, as discussed above. The last rule against advocate-witnesses serves to “eliminat[e] confusion over the lawyer’s role. The confusion could prejudice one or more of the parties or call into question the impartiality of the judicial process itself. . . . The very fact of a lawyer taking on both roles will affect the way in which a jury evaluates the lawyer’s testimony, the lawyer’s advocacy, and the fairness of the proceedings themselves.” ABA Ann. Mod. R. Prof. Cond., R. 3.7 Legal Background, at p. 362. The ban on attorney vouching is essential to promote the fairness of the legal process and to prevent a trial  from becoming — to paraphrase Robert Frost — a contest to determine who has the more credible lawyer. Obviously, in the case of prosecutorial vouching, the dangers of ordinary attorney-vouching are amplified by two considerations. The first is that an AUSA invokes the extra authority and prestige of the United States government. The second is that life and liberty are at stake in the prosecutor’s gamesmanship. 

	The argument is more than that vouching should undermine a conviction because we are picky about process. After all, what’s the point of all this fair competition and of adversarial roles? It is important to remember that behind the process lies a deeper concern; namely, truth, as established under constitutionally mandated burden of proof. And for all our haste to get to the bottom of things (which unfortunately is what courts seem to think they’re doing when they disregard instances of vouching), there simply is no shortcut past an insistence upon proper truth-seeking procedures. 

	The problem is that, like all advocates, prosecutors often believe they know what’s true. Judges by and large are convinced they know what’s true. And on a good day, the jury is pretty sure it knows what’s true. But everyone can’t be right, and by the time of trial, most of the participants have become distanced from the event in question — if only by the passage of time and the problems of memory and the preservation and use of evidence. So how do we best determine that the truth has been established in accordance with constitutionally imposed burdens? Emphatically, appeals to authority are notoriously poor truth-seeking devices. A lawyer who resorts to vouching is at best careless and at worst nothing more than a person who has too little good evidence of what really happened to take the high road. This is, in reality, resorting to the road to winning, confusing it with the other path. In the reality of after-the-fact litigation, a failure to guard the fairness of the procedures is a failure to maintain a concern for the appropriate outcome. 

	The American legal system accounts for our inability to know what actually happened by incorporating the various burdens of persuasion. Because life and liberty are at stake, courts must not permit convictions unless the prosecutor can prove the case beyond a reasonable doubt. When prosecutors resort to tactics like improper cross-examination and vouching, however, they are lowering the bar and distorting the burden of proof. As if the defendant is not already sufficiently disadvantaged merely by being accused, the prosecution uses these improper tactics either to make the accused look worse in front of the jury or to make the prosecution witnesses look good, regardless of the truth. 
	The question should always be, Has the prosecutor established the case beyond a reasonable doubt? When the defendant is forced to evaluate the credibility of a witness who provides incriminating evidence, the jury becomes focused on a different issue; namely, whether the defendant or the witness is testifying truthfully. In this type of case, reaching a decision by resolving the credibility issue permits the jury consciously or subconsciously to apply a standard different than reasonable doubt. 

	This type of disregard for the truth and a person’s actual innocence is symptomatic in cases involving prosecutorial misconduct. For example, a report issued by the Los Angeles County Grand Jury on June 26, 1990 showed how prosecutors’ and investigators’ systematic misuse of jailhouse informers caused wrongful convictions in as many as 250 major felony prosecutions between 1979 and 1988. Testimony that prosecutors generally knew to be perjury put innocent people behind bars. More generally, in a substantial portion of the cases wherein people have definitively proven their innocence — including capital cases — the prosecutor procured the wrongful conviction with tactics amounting to misconduct. See Bedeau, Radelet, and Putnam, In Spite of Innocence (Northeastern University Press, 1992); Rosenbaum, Inevitable Error: Wrongful New York State Homicide Convictions, 1967–88, 18 N.Y.U. Rev. L. & Soc. Change 807, 809 (1990–91) (report of New York State Defenders Association’s Wrongful Conviction Study Project, documenting 59 wrongful homicide convictions in New York between 1965 and 1988, “a substantial number of [which] . . . resulted from prosecutorial misconduct . . . includ[ing] . . . suppression of exculpatory evidence and the conscious use of perjured testimony.”). 

	Since prosecutorial misconduct is responsible for so many wrongful convictions, the need to uphold the purposes of the various rules becomes even more important, and this should inform how trial and appellate courts treat the issue of prosecutorial vouching. In short, it should result in a mistrial or a reversal far more often than it actually does. 

Prejudice, Prosecutorial Pride and Reversal 

	When should improper cross-examination tactics and-or prosecutorial vouching result in a reversal? After all, “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial.” United States v. Young, 470 U.S. at 11. 

	As usual, the courts employ the harmless error standard in cases of objections and the plain error standard when no objection is made. Id., at 14–15. If there is a prompt objection, this type of improper cross-examination or instance of vouching will result in a reversal if the court finds that it prevents the jury from judging the evidence fairly in the overall context of the trial. See generally United States v. Sherlock, 865 F.2d 1069, 1082 (9th Cir. 1989). In cases like United States v. Combs, supra, 122 F.3d 564, where there is no timely objection to either the cross-examination or the prosecutorial vouching, the question is whether the error was plain and affected substantial rights by seriously affecting the fairness or integrity of the proceedings or by resulting in a miscarriage of justice. 

	Combs provides a useful example of a reversal based on improper cross- examination. A panel consisting of Judges Kim Wardlaw, Stephen Reinhardt and David Thompson determined that “[b]ecause there was no direct evidence of guilt and the circumstantial evidence was not overwhelming, the case boiled down to whether the jury believed Combs when he testified that he had not manufactured methamphetamine.” Id., at 573. Noting that Agent Bailey sat at counsel’s table throughout the trial, Judge Wardlaw wrote, “Bailey’s testimony was critical, and possibly determinative.” Id. Given such a critical issue, to require the defendant to call the lead investigating agent a liar is “fundamentally unfair.” Id. It undermines the fairness, integrity or public reputation of the proceedings. 

	The trial court in Combs, moreover, compounded the error by lending its weight to the inquiry, and the prosecutor emphasized the evidence in her closing argument. Judge Wardlaw had no trouble concluding that under the circumstances, there was error, it was plain, and it affected substantial rights such that a reversal was necessary. Not only did the prosecutor commit misconduct, but also the conduct was severe enough to require a reversal. Compare United States v. Richter, supra, 826 F.2d 206 (cross-examination forcing accused to claim others lied on the stand required reversal where prosecutor revisited testimony in closing argument). If there is a persuasive argument about how a case primarily boils down to a credibility contest and the court agrees, the error cuts to the heart of the trial. See, e.g., United States v. Rudberg, 122 F.3d 1199, 1205–06 (9th Cir. 1997) (finding plain error where “[p]roving the conspiracy charge against Rudberg depended entirely on the testimony of witnesses whose testimony the prosecutor repeatedly supported with reference to the Rule 35 process”). 

	As for vouching, in particular, the Ninth Circuit considers a variety of contextual factors in determining whether to reverse, including “the form of vouching; how much the vouching implies that the prosecutor has extra-record knowledge of or the capacity to monitor the witness’s truthfulness; any inference that the court is monitoring the witness’s veracity; the degree of personal opinion asserted; the timing of the vouching; the extent to which the witness’s credibility was attacked; the specificity and timing of a curative instruction; the importance of the witness’s testimony and the vouching to the case overall.” United States v. Necoechea, 986 F.2d at 1278. Again, these considerations are employed under the appropriate standard of review. When no objection is made, a court will only reverse for plain error. 

	Even then, all hope is not lost. In Combs, the panel found plain error because of the clear, critical importance of Agent Bailey’s testimony to the case. When a case comes down to the word of one witness against the word of another, an explicit governmental endorsement is prejudicial in a way that impacts the integrity of the proceedings. So when the prosecutor said that Agent Bailey wouldn’t risk his job to lie on the witness stand just to win a single case, she went too far. 

	It is important to emphasize that not all courts recognize the prejudicial nature of the error. In Expert Witnesses and Prosecutorial Vouching: New Frontiers in ‘Soft Expert’ Testimony: RICO Report, we reviewed a troubling case tried by New York defense lawyer Jerry Shargel — whose clients have included John Gotti, as well as Daniel J. Pelosi in the recent trial over the death of R. Theodore Ammon — in which an extraordinary instance of prosecutorial vouching was deemed not to be reversible. See United States v. Cho, Case No. 96-1608 (2d Cir. May 23, 1997) (unpublished). In Cho, the trial court allowed an AUSA who had participated in the investigation of a case to testify in the same case and provide so-called expert testimony establishing the truthfulness of the informers’ testimony. In essence, the prosecutor testified that she only gives deals to witnesses who tell the truth. Then, the trial counsel in closing argument highlighted the testimony. 

	Strangely, on appeal the Second Circuit refused to find plain error since it did not think that in a case that actually was a credibility contest, such egregious vouching seriously affected the integrity of the proceedings or created a danger of infecting the jury’s verdict. To add insult to injury, the panel found that a bare-bones instruction telling the jury to weigh the credibility of the witnesses — after the court rejected more comprehensive instructions about informer credibility — was sufficient. This holding is extremely troubling and fortunately remains relatively anomalous. While most defense counsel appreciate when this column discusses their trials, we apologize in advance to Mr. Shargel for revisiting this distasteful experience. 

	In United States v. Necoechea, supra, 986 F.2d 1273, a conservative Ninth Circuit panel composed of Judges Pamela A. Rymer, Alfred T. Goodwin and Diarmuid F. O’Scannlain also found that two instances of vouching were errors, but not plain ones. There, a key informer received a deal for providing testimony connecting the defendant to the cash in a drug transaction. In opening argument, the prosecutor pointed to a truthfulness provision in the witness’s deal and later the defense noted the same witness did not testify against others. In closing argument, the prosecutor informed the jury that the other cases had been resolved. This was a submission of facts not in evidence. Id., at 1279. 

	Finding that the vouching was not critical to the prosecution’s case, Judge Rymer observed that the witness’s credibility was “forcefully challenged at trial,” id. at 1280, and some other circumstantial evidence supported the same link between Necoechea and the crime. The panel therefore concluded that the case was not so close as to hold that the vouching required reversal. Compare United States v. Jackson, 84 F.3d 1154, 1158 (9th Cir. 1996) (holding that given “abundant evidence” against defendant, prosecutor’s statement that important witness had nothing to gain by untrue cooperation because she would not be charged with a crime anyway was not plain error). 

Conclusion 

	It is well settled that a prosecutor commits misconduct by forcing a defense witness on cross-examination to call a witness a liar or by lending the government’s prestige through vouching for the witness. Even so, it unfortunately happens all too often. The question is, What can be done about it? Courts have made no headway by merely issuing verbal admonishments and rebukes to prosecutors. Surprisingly, for those prosecutors who bring an excess of zeal to their cases, even reversals on appeal do not seem to stop misconduct at the trial level — especially in light of the lower risk of reversal they incur under the harmless and plain error standards of review. At one time, one might have thought that reversals would help to curb prosecutorial misconduct. See The Supervisory Power to Dismiss: An Essential Solution to the Problem of Prosecutorial Misconduct, 20 CACJ Forum at 18 (Dec. 1993). 

	It seems that only dismissals of charges will deter those prosecutors who repeatedly run afoul of the law. Some but very few of the most egregious violations in fact have resulted in dismissals. See, e.g., United States v. Marshank, 777 F. Supp. 1507 (N.D. Cal. 1991) (dismissing indictment where defense counsel, in concert with the prosecution, maintained conflict of interest and took shares of forfeiture monies gained by client-informers who testified against another client); United States v. Valerie Tashjian, No. CR-88-124(B)-PAR (C.D. Cal. 1988) (dismissing case against a wife where the prosecutor obtained her plea by threatening more serious charges against her co-defendant husband). 
	Perhaps if dismissal was a remedy that was sanctioned more often by the appellate courts, more misconduct might disappear from the halls of justice. Strangely enough, the courts’ inherent supervisory power to dismiss is a doctrine rarely applied or upheld on appeal. See, e.g., United States v. Sears, Roebuck & Co., 518 F. Supp. 179 (C.D. Cal. 1981), rev’d 719 F.2d 1386 (9th Cir. 1983) (reversing dismissal for misconduct); United States v. Isgro, 751 F. Supp. 846 (C.D. Cal. 1990, rev’d 974 F.2d 1091 (9th Cir. 1992) (same). Nevertheless, appellate courts have concluded that dismissal under the courts’ supervisory power is an appropriate remedy when necessary to deter outrageous prosecutorial misconduct. See United States v. Kojayan, 8 F.3d 1315, 1325 (9th Cir. 1993) (Kozinski, J.) (vacating the conviction and remanding the case with instructions to the trial court to determine whether to “dismiss the indictment with prejudice as a sanction for the government’s misbehavior”); see also United States v. Bernal-Obeso, 989 F.2d 331, 337 (9th Cir. 1993) (Trott, J.) (“Should the court uncover egregious wrongdoing by the government, however, nothing in this opinion forecloses consideration by the court of dismissing the indictment for outrageous government conduct.”).

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DEFENDANT'S MOTION FOR DIRECTED VERDICT OF ACQUITTAL (murder)
	Based the facts herein, applicable law and the supporting arguments below, this defendant moves the court to take the case away from the jury, to direct a verdict of not guilty as a matter of law.  The jury should not be permitted an opportunity to convict defendant, because either there is a fatal variance between the allegations of the indictment and the proof offered by the State or the State failed to present sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that defendant criminally responsible as the primary actor or as a party for committing each essential element of the crime alleged in the charging instrument and each lesser-included offense thereto.
ARGUMENT
	The court should so acquit defendant due to these authorities.
	Insufficient Evidence to Convict:  Defendant contends there is legally insufficient evidence for the court to conclude beyond a reasonable doubt that Defendant was either the primary actor or criminally responsible as a party for the acts of another.  Defendant argues that though the trial's evidence may show knowledge of the crime(s) about to be committed, there is no evidence upon which the jury could find beyond a reasonable doubt and convict Defendant of acting either “alone” or as a primary actor in the offense(s) charged herein.  Defendant also contends no proof shows he had the intent to promote or assist in the commission of charged offense(s) or any lesser included offense thereof.
	Constitutional Requisites:  In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 2080-2081, 124 L.Ed.2d 182 (1993), the Court said (footnote omitted):  
	The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968), we found this right to trial by jury in serious criminal cases to be "fundamental to the American scheme of justice," and therefore applicable in state proceedings.  The right includes, of course, as its most important element, the right to have the jury rather than the judge, reach the requisite finding of "guilty."  See Sparf and Hansen v. United States, 156 U.S. 51, 105-106, 15 S.Ct. 273, 294-295, 39 L.Ed. 343 (1895).  Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence. Ibid.  See also United States v. Martin Linen Supply Co., 430 U.S. 564, 572-573, 97 S.Ct. 1349, 1355-1356, 51 L.Ed.2d 642 (1977); Carpenters v. United States, 330 U.S. 395, 410, 67 S.Ct. 775, 783, 91 L.Ed. 973 (1947).

	What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause.  The prosecution bears the burden of proving all elements of the offense charged, see, e.g., Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977); Leland v. Oregon, 343 U.S. 790, 795, 72 S.Ct. 1002, 1005, 96 L.Ed. 1302 (1952), and must persuade the factfinder "beyond a reasonable doubt" of the facts necessary to establish each of those elements, see, e.g., In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972) (per curiam).  This beyond-a-reasonable-doubt requirement, which was adhered to by virtually all common-law jurisdictions, applies in state as well as federal proceedings.  Winship, supra. 

	It is self-evident, we think, that the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated.  It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine (as Winship requires) whether he is guilty beyond a reasonable doubt.  In other words, the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.  Our per curiam opinion in Cage, which we accept as controlling, held that an instruction of the sort given here does not produce such a verdict.  Petitioner's Sixth Amendment right to jury trial was therefore denied.
	Standard of Review on Legal Sufficiency:  A challenge to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction.  Cook v. State, 858 S.W.2d 467, 471 (Tex.Cr.App. 1993).  Such challenge to the sufficiency of the evidence to support the conviction requires the trial judge to review all the submitted evidence in the light most favorable to the State to determine if any rational trier of fact could have found each essential element of the charged crime beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979); Zavala v. State, 956 S.W.2d 715 (Tex.Cr.App. 1997).
	Constitutional Requisites:  In Sullivan v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 329-330, 112 L.Ed.2d 339 (1990), the Court said (footnote omitted):

	In state criminal trials, the Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."  In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); see also Jackson v. Virginia, 443 U.S. 307, 315-316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979).  This reasonable-doubt standard "plays a vital role in the American scheme of criminal procedure."  Winship, 397 U.S., at 363, 90 S.Ct., at 1072.  Among other things, "[i]t is a prime instrument for reducing the risk of convictions resting on factual error."  Ibid.  The issue before us is whether the reasonable-doubt standard instruction in this case complied with Winship.  *****  It is our view, however, that the instruction at issue was contrary to the "beyond a reasonable doubt" requirement articulated in Winship.

	In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole.  Francis v. Franklin, 471 U.S. 307, 316, 105 S.Ct. 1965, 1972, 85 L.Ed.2d 344 (1985).  The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a "grave uncertainty" and an "actual substantial doubt," and stated that what was required was a "moral certainty" that the defendant was guilty.  It is plain to us that the words "substantial" and "grave," as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard.  When those statements are then considered with the reference to "moral certainty," rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.
	Timing of Standard of Review:  An appellate court is not required to pass on the contention that the evidence was insufficient at the time the State rested its case-in-chief once the appellate court has determined, after considering all the evidence presented at trial by both the State and the defendant, the evidence is sufficient to sustain the conviction.  Cook v. State, 858 S.W.2d 467, 471 (Tex.Cr.App. 1993).     
	Essential elements of charged crime:  A person commits an offense if he intentionally or knowingly causes the death of an individual.  Tex. Pen. Code § 19.02(b)(1) (1996).  That crime's statutory elements are:
(a)	a person
(b)	intentionally or knowingly
(c)	causes the death
(d)	of an individual.
See Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App. 1978) [construing pre-1994 Tex. Pen. Code § 19.02(a)(1)].
	Conduct Elements of the Crime:  Intentional murder under Tex. Pen. Code § 19.02(a) (1) is a "result of offense" offense.  Cook v. State, 884 S.W.2d 485, 487-491 (Tex.Cr.App. 1994) [construing pre-1994 Tex. Pen. Code § 19.02(a)(1), and holding it is error for a trial judge to not limit the definitions of the culpable mental states as they relate to the conduct elements involved in the particular offense, since the most basic and fundamental concept of criminal law is that in order to constitute a crime, the act or actus reus must be accompanied by a criminal mind or mens rea, which the Texas Legislature recognized by enacting four separate culpable mental states in Tex. Pen. Code § 6.03].
	Precedent:  The evidence is insufficient to convict under Tex. Pen. Code § 19.02(a)(1) (1974), where the only evidence was that defendant was present at scene of the stabbing, and the medical examiner testified the wound could have been self-inflicted, and since the burden of proof never shifted from the State, conviction could not rest only on disbelief of defendant's exculpatory testimony, where state did not exclude every reasonable hypothesis except defendant's guilt.  Wright v. State, 603 S.W.2d 838 (Tex.Cr.App. 1980) (on rehearing) [judgment reversed and trial court ordered to enter an acquittal].
	Jackson Standards:  In reviewing the legal sufficiency of the evidence, the court must employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Johnson v. State, 23 S.W.3d 1, 7 (Tex.Cr.App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex.Cr.App. 1991); Skillern v. State, 890 S.W.2d 849, 879 (Tex.App.‑Austin 1994, pet. ref'd).  The standard of review is the same in both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex.Cr.App. 1995); Green v. State, 840 S.W.2d 394, 401 (Tex.Cr.App. 1992).  In a circumstantial evidence case, proof amounting only to a strong suspicion is not enough.  Vaughn v. State, 607 S.W.2d 914, 921 (Tex.Cr.App. 1980).  Nevertheless, every fact need not point directly and independently to the accused's guilt; a conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances.  Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Cr.App. 1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982).
	The State may prove its case by circumstantial evidence if it proves all of the elements of the charged offense beyond a reasonable doubt.  Easley v. State, 986 S.W.2d 264, 271 (Tex.App.‑San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319).  The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused.  Alexander v. State, 740 S.W.2d 749, 758 (Tex.Cr.App. 1987).  It is important to remember that all the evidence the jury was permitted, properly or improperly, to consider must be taken into account in determining the legal sufficiency of the evidence.  Garcia v. State, 919 S.W.2d 370, 378 (Tex.Cr.App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App. 1993); Nickerson v. State, 810 S.W.2d 398, 400 (Tex.Cr.App. 1991); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex.App.‑Austin 1997, no pet.).
	The jury is the exclusive judge of the facts proved, the weight to be given the testimony, and the credibility of the witnesses.  See Tex. Crim. Proc. Code article 38.04; Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Cr.App. 1995);  Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App. 1992).  The jury is free to accept or reject any or all of the evidence presented by either party.  Saxton v. State, 804 S.W.2d 910, 914 (Tex.Cr.App. 1991).  The jury maintains the power to draw reasonable inferences from basic facts to ultimate fact.  Welch v. State, 993 S.W.2d 690, 693 (Tex.App.‑San Antonio 1999, no pet.); Hernandez v. State, 939 S.W.2d 692, 693 (Tex.App.‑Fort Worth 1997, pet. ref'd).  Moreover, the reconciliation of evidentiary conflicts is solely within the province of the jury.  Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Cr.App. 1995).
	Under the Jackson standard, neither trial nor reviewing courts are to position itself as a thirteenth juror in assessing the evidence.  Rather, it is to position itself as a final due‑process safeguard insuring only the rationality of the fact finder.  Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).  It is not the reviewing court's duty to disregard, realign, or weigh the evidence.  Id; see Pesina v. State, 949 S.W.2d 374, 377 (Tex.App.-San Antonio 1997, pet. ref'd).  The jury's verdict must stand unless it is found to be irrational or unsupported  by more than a "mere modicum" of evidence, with such evidence being viewed in the light of Jackson.  Id.  The legal sufficiency of the evidence is a question of law.  McCoy v. State, 932 S.W.2d 720, 724 (Tex.App.‑Fort Worth 1996, pet. ref'd).
	Parties Law:  A person is criminally responsible as a party to an offense if the offense is committed by .... the conduct of another for which he is criminally responsible.  Tex. Pen. Code § 7.01(a).  A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.  Tex. Pen. Code § 7.02(a)(2).
	Under parties law, the State is able to enlarge a defendant's criminal responsibility to acts in which he may not be the primary actor.  See Goff v. State, 931 S.W.2d 537, 544 (Tex.Cr.App. 1996); Romo v. State, 568 S.W.2d 298, 300 (Tex.Cr.App. 1977) (reh'g op.).  When an accused promotes or assists in the commission of an offense, he also shares the criminal responsibility.  See Haddad v. State, 860 S.W.2d 947, 950 (Tex.App.‑Dallas 1993, pet. ref'd).  If the State is to prove the accused's guilt as a party, it must first prove another person guilt as the primary actor.  See Richardson v. State, 879 S.W.2d 874, 882 (Tex.Cr.App.1993); Forbes v. State, 513 S.W.2d 72, 79 (Tex.Cr.App. 1974); Godwin v. State, 899 S.W.2d 387, 389 (Tex.App.‑Houston [14th Dist.] 1995, pet. ref'd).  
	Before undertaking a determination of the legal sufficiency of the evidence to support appellant's conviction as a party, the court must examine the law of parties. When an accused promotes or assists in the commission of an offense, he also shares the criminal responsibility.  Haddad, 860 S.W.2d at 950.  If the State is to prove the accused's guilt as a party, it must first prove the guilt of another person as the primary actor.  Richardson v. State, 879 S.W.2d 874, 882 (Tex.Cr.App. 1993), cert. denied, 513 U.S. 1085, 115 S.Ct. 741, 130 L.Ed.2d 643 (1995); Forbes v. State, 513 S.W.2d 72, 79 (Tex.Cr.App. 1974), cert. denied, 420 U.S. 910, 95 S.Ct. 830, 42 L.Ed.2d 840 (1975); Godwin v. State, 899 S.W.2d 387, 389 (Tex.App.‑Houston [14th Dist.] 1995, pet. ref'd).  If the evidence is insufficient to convict the named or unnamed co‑defendant as a primary actor, it follows that the trial court has authorized a conviction of the defendant as a party on a theory unsupported by the evidence.  Richardson, 879 S.W.2d at 882.  To prove Defendant was a party, the State had to prove Defendant committed an act, which solicited, encouraged, directed, aided, or attempted to aid in the commission of the offense of conviction.  See Tex. Pen. Code § 7.02(a)(2).  In order to establish liability as a party, it must be proven that, in addition to the illegal conduct by the primary actor, the accused harbored the specific intent to promote or assist in the commission of the offense, i.e., intentional murder.  Lawton v. State, 913 S.W.2d 542, 555 (Tex.Cr.App. 1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996); Tucker v. State, 771 S.W.2d 523, 530 (Tex.Cr.App. 1988), cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989); Barnes v. State, 62 S.W.3d 288, 296 (Tex.App.‑Austin 2001, pet. ref'd); Pesina v. State, 949 S.W.2d 374, 382 (Tex.App.‑San Antonio 1997, no pet.); Garcia v. State, 871 S.W.2d 279, 281 (Tex.App.‑El Paso 1994, no pet.) (holding evidence must show conduct constituting offense plus an act or acts by accused done with the intent to promote or assist such conduct).  The accused must know that he or she is assisting in the commission of an offense.  Amaya v. State, 733 S.W.2d 168, 174‑175 (Tex.Cr.App. 1986); Pesina, 949 S.W.2d at 382; Price v. State, 911 S.W.2d 129, 131 (Tex.App.‑Corpus Christi 1995, pet. ref'd).  The agreement, if any, must be before or contemporaneous with the criminal event.  See Beier v. State, 687 S.W.2d 2, 3‑4 (Tex.Cr.App. 1985); Miranda v. State, 813 S.W.2d 724, 732 (Tex.App.‑San Antonio 1991, pet. ref'd).  The evidence must show that at the time of the commission of the offense, the parties were acting together, each doing some part of the execution of the common design.  Brooks v. State, 580 S.W.2d 825, 831 (Tex.Cr.App. 1979) (emphasis added); Thomas v. State, 915 S.W.2d 597, 599‑600 (Tex.App.‑Houston [14th Dist.] 1996, pet. ref'd); Cornejo v. State, 871 S.W.2d 752, 755‑756 (Tex.App.‑Houston [1st Dist.] 1993, pet. ref'd).  The essential principle of parties' culpability is the common design to do a criminal act.  Brooks, 580 S.W.2d at 831.
	While an agreement of the parties to act together in a common design seldom can be proved by direct evidence, reliance may be had on the actions of the parties, showing by either direct or circumstantial evidence, an understanding and common design to do a certain act.  Burdine v. State, 719 S.W.2d 309, 315 (Tex.Cr.App. 1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Ex parte Prior, 540 S.W.2d 723, 727‑728 (Tex.Cr.App. 1976); Bratcher v. State, 771 S.W.2d 175, 183 (Tex.App.‑San Antonio 1989, no pet.).  Circumstantial evidence alone may be sufficient to show that one is a party to the offense.  Wygal v. State, 555 S.W.2d 465, 469 (Tex.Cr.App. 1977); see also Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Cr.App. 1987).
	The State must show more than mere presence to establish participation in a criminal offense.  Valdez v. State, 623 S.W.2d 317, 321 (Tex.Cr.App. 1981).  Mere presence or even knowledge of an offense do not make one a party to the offense.  Oaks v. State, 642 S.W.2d 174, 177 (Tex.Cr.App. 1982); Acy v. State, 618 S.W.2d 362, 365 (Tex.Cr.App. 1981); see Monroe v. State, 47 Tex.Crim. 59, 81 S.W. 726, 727 (Tex.Cr.App. 1904) (holding mere fact defendant who was present but did not participate or aid in homicide, concealed the offense for a time or failed to report killing, did not make him guilty of any offense).  Mere presence at the scene of a crime is not alone sufficient to prove that a person is a party to the offense, although mere presence is a circumstance tending to prove that a person is guilty as a party to the offense, which, when taken and combined with other facts, may suffice to show that the accused was a participant.  Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Cr.App. 1987); see Wygal, 555 S.W.2d at 469; Barnes v. State, 62 S.W.3d 288, 297 (Tex.App.‑Austin 2001, pet. ref'd).  In determining whether an accused participated in the offense as a party, the fact finder may examine the events occurring before, during, and after the commission of the offense, and may rely on the actions of the defendant which show an understanding and common design to commit the offense.  Beier v. State, 687 S.W.2d 2, 4 (Tex.Cr.App. 1985); see Thompson v. State, 697 S.W.2d 413, 416 (Tex.Cr.App. 1985); Diaz v. State, 902 S.W.2d 149, 151‑152 (Tex.App.-Houston [1st Dist.] 1995, no pet.).  The evidence must show that, at the time of the offense, the parties were acting together, each contributing some part toward the execution of the common purpose.  Burdine v. State, 719 S.W.2d 309, 315 (Tex.Cr.App. 1986). 
	One's acts committed after the offense is completed cannot make him a party to the offense.  Morrison v. State, 608 S.W.2d 233, 235 (Tex.Cr.App. 1980); Guillory v. State, 877 S.W.2d 71, 74 (Tex.App.‑Houston [1st Dist.] 1994, pet. ref'd).  Standing alone, proof that an accused assisted the primary actor after the commission of the offense is insufficient, although the accused's conduct may constitute the independent offense of hindering apprehension or prosecution.  See Urtado v. State, 605 S.W.2d 907, 912 (Tex.Cr.App. 1980).  The 1925 Tex. Pen. Code provision (article 77) that an accessory after the fact was a party to the crime has been repealed. Urtado, 605 S.W.2d at 912; see also Wygal, 555 S.W.2d at 470; Easter v. State, 536 S.W.2d 223, 228‑229 (Tex.Cr.App. 1976); 42 George E. Dix and Robert O. Dawson, Criminal Practice and Procedure, § 31.163 at 252 (Texas Practice 1995).
	Case's Analysis:  With this background, the court must examine the evidence to determine if the evidence is legally sufficient to establish beyond a reasonable doubt that Defendant was "acting alone" or as a primary actor in the murder alleged.  The State's theory from voir dire examination to its opening statement to its final argument was that Defendant's guilt depended upon the law of parties.  The State urges now that a general verdict by the jury would support Defendant's conviction as a party to the offense of _________.  To the contrary, Defendant contends that if the jury in the instant case returns a general verdict, that verdict cannot be upheld on any theory discussed above although submitted.  	Where no eye witnesses to the offense testified, there is no direct evidence supporting the allegations that Defendant intentionally or knowingly and acting alone or as a primary actor ________ the victim with _______.  No showing was made of any prior relationship between Defendant and the victim and there was certainly no direct evidence which placed Defendant in the company of the victim until after the infliction of the fatal wound.  Suspicions abound, but neither the direct nor circumstantial evidence is sufficient to support Defendant's conviction as a primary actor or as "acting alone."  It is appropriate, where alternative theories of committing the same offense are submitted to the jury in the disjunctive, for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted.  Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Cr.App. 1991), cert. denied, 504 U.S. 958, 112 S.Ct. 2309, 119 L.Ed.2d 230 (1992).  
	Illuminating insufficiency cases are:
1.	Cotella v. State, 860 S.W.2d 618, 622 (Tex.App.)Corpus Christi 1993, no pet.).  There, even though the trier of fact may look at events occurring before, during, and after the offense in determining whether the accused participated in the offense charged, the appeals court ordered an acquittal since appellant acted recklessly, not with the intent to promote or assist the two murders charged beyond a reasonable doubt, although appellant knew or reasonably should have known that her husband was going to kill the men if appellant continued to lie about them raping her. 
2.	Wygal v. State, 555 S.W.2d 465, 468-470 (Tex.Cr.App. 1977).  There, the court reversed the judgment revoking probation, since under the circumstances the evidence was by a preponderance of the evidence insufficient to show that appellant acting alone or as a party had committed the theft of the Mark IV automobile.  The court noted: (a) the record is silent as to any direct burden of any common purpose or design to participate in the criminal enterprise; (b) the case's circumstances are not sufficient to show appellant acted with intent to promote or assist the commission of the offense, by soliciting, encouraging, directing, aiding, or attempting to aid another person to commit the offense charged; and (c) since appellant's acts came after the offense had been completed, she could not be convicted as a party because the 1974 Tex. Pen. Code abolished criminal liability for an accessory after the fact except under Tex. Pen. Code § 38.05, which is inapplicable herein.
3.	Sewell v. State, 578 S.W.2d 131, 136-137 (Tex.Cr.App. 1979).  There the court reversed the judgment below and ordered any acquittal since: (a) the State must prove that the defendant acted with intent to promote or assist in the commission of the offense of Smith's possession of more than four ounces of marihuana by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission under Tex. Pen. Code § 7.02(a)(2); and (b) although the State's proof can be done by circumstantial evidence and the evidence is viewed in regards to events before, during and after commission of the offense, the only evidence in this case involving appellant was as to events before the offense occurred; but there is no evidence of any aiding in the carrying out of the offense in any way other than riding in the car before that car was loaded at the trailer. 
4.	Morrison v. State, 608 S.W.2d 233 (Tex.Cr.App. 1980) (appeals court ordered reversed the judgment of conviction for aggravated robbery and ordered an acquittal, because:  (a) in determining whether an individual is a party to an offense and bears criminal responsibility therefor, the court may look to events before, during, and after the commission of the offense; (b) circumstantial evidence may be sufficient to show that one is a party to the offense; (c) the issue on appeal is whether the circumstances in this case sufficiently establish that appellant, acting with intent to assist or promote the robbery, committed an act that encouraged, directed, aided or attempted to aid Clement in his commission of the aggravated robbery; (d) acts committed after the robbery was completed could not make appellant a party to the offense; (e) the circumstances must prove some culpable act before or during the robbery; (f) since appellant was not the primary actor, the presumption that one in unexplained possession of recently stolen property was the thief could not apply; (g) the conclusion that appellant committed some culpable act rests entirely on conjecture; and (h) the evidence was not sufficient to show that appellant committed some act with intent to promote or assist the commission of the offense, by encouraging, directing, aiding, or attempting to aid clement to commit the robbery.
5.	Porter v. State, 634 S.W.2d 846 (Tex.Cr.App. 1982).  There, the court set aside and reformed the judgment of conviction for murder to show an acquittal, since in this felony murder prosecution under Tex. Pen. Code § 19.02(a)(3) the evidence was insufficient to support conviction of appellant as a party responsible for Felder's guilt in murdering the victim, Ivan Stout, in the course and furtherance of the commission of the burglary of a habitation.  The court noted: (a) the issue presented is whether the evidence could have reasonably been interpreted by the jury to show appellant's participation in the offense in such a manner so as to render appellant guilty as a party to Felder's actions; (b) a defendant is guilty as a party to an offense when he is physically present at the commission of the offense and encourages the commission of the offense by words or other agreement; (c) in determining whether the accused participated as a party in committing an offense, the fact finder may look to events occurring before, during and after the offense and reliance may be placed on actions which show an understanding and common design to do a certain act; (d) however, mere presence alone will not be sufficient to show a defendant's guilt as a party to an offense; (e) the State did not present direct evidence which proved appellant was a party to the burglary or subsequent murder of Stout; and (f) while appellant's presence at the scene of the offense and her actions in screaming at Stout and providing a false name raise a suspicion, such proof alone is insufficient to support appellant's conviction that she acting with the intent to promote or assist in the commission of the burglary and murder, solicited, encouraged, directed, aided, or attempted to aid Felder in the commission of the offense.
6.	Beier v. State, 687 S.W.2d 2 (Tex.Cr.App. 1985).  There, the appeals court reversed the judgments below and ordered an acquittal in a prosecution for selling obscene materials in violating of Tex. Pen. Code § 43.23(c)(1), since the evidence is insufficient to sustain appellant's conviction.  The court noted: (a) where the evidence shows that the defendant was not a "primary actor," but at most responsible for the actions of the "primary actor,"  the State must prove another's conduct constituting an offense plus an act by the accused done with the intent to promote or assist such conduct; (b) evidence is sufficient to convict the defendant under the law of parties where he is physically present at the commission of the offense either by words or other agreement; (c) the agreement, if any, must be before or contemporaneous with the criminal conduct; (d) mere presence alone without evidence of intentional participation is insufficient; (e) in determining whether the accused participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of the accused which show an understanding and common design to do the prohibited act; (f) circumstantial evidence may be used to prove one is a party to an offense; (g) under Texas law a person is not punished for his status, but for his conduct; (h) the law does not authorize the accused's conviction based upon proof of his status as the manager of an enterprise, so long as he knew that the enterprise had criminal potential; (i) applying the law of parties as set forth in Tex. Pen. Code § 7.02(a)(2) to the allegations in the charging instrument, the essential elements of the offense are that the accused solicited, encouraged, directed, aided, or attempted to aid the sales clerk in the sale of the named film, and that accused did so, not inadvertently, but with intent to promote or assist the sale of said film, and that accused had knowledge of the character and content of the film; (j) since the State failed to prove an act by the accused that directed, aided, encouraged, or assisted in the commission of the charged offense, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt; and (k) therefore, the evidence is insufficient to support appellant's conviction.
7.	Skelton v. State, 795 S.W.2d 162, 166-170 (Tex.Cr.App. 1990).  There, the court held evidence was not sufficient beyond a reasonable doubt to convict appellant either as a sole actor or as a party of capital murder, because the evidence does not exclude every other reasonable hypothesis.
8.	Medrano v. State, 658 S.W.2d 787, 790-794 (Tex.App.)Houston [1st Dist.] 1983, pet. ref'd).  There, in prosecution for burglary of a habitation, the appeals court affirmed the conviction as to Roland Medrano and ordered an acquittal as to Ronald Medrano, pointing out that (a) agreement of parties to act together in committing an offense may be established by circumstantial evidence, but a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged; (b) to determine whether an individual is criminally responsible for the conduct of a primary actor, a court may look to events before, during, and after the commission of an offense, but there must be evidence of a common purpose or design prior to or contemporaneous with the criminal event; (c) accessory conduct is no longer recognized under Texas law as conduct making one a party; and (4) such acts are now prohibited under Tex. Pen. Code § 38.05 (1974), which defines a separate and distinct crime of "hindering apprehension or prosecution."
	STATE'S PROOF OMISSIONS: In this instance, the State may try to prove Defendant could be convicted as the primary actor.  If so, the State is required to prove that Defendant intentionally or knowingly caused the death of the alleged victim by _______ the victim with ________, a deadly weapon.  The specific allegations in the indictment became "facts required to establish the charged offense."  Wray v. State, 711 S.W.2d 631, 633 (Tex.Cr.App. 1986); Windham v. State, 638 S.W.2d 486, 487‑488 (Tex.Cr.App. 1982).
	This is where the evidence fails.  There is no evidence that Defendant intentionally or knowingly did any act making him/her criminally responsible as the primary actor for committing the crime alleged in the charging instrument.
	On the other hand in this instance, the State may try to prove Defendant could be convicted as a party.  As such, the State was required to prove the crime alleged in the charging instrument, plus an act by Defendant done with the specific intent to promote or assist in the commission of the crime alleged in the charging instrument.  This is where the evidence fails.  There is no evidence that Defendant did any act with an intention to promote or assist the crime alleged in the charging instrument or he knew he was assisting in the commission of an offense.
	Reviewing the evidence that is most favorable to a possible verdict favoring the State, the court should find that Defendant was merely present during another's commission of the crime alleged in the charging instrument.  None of Defendant's actions show any intent to assist in the commission of a crime.  There is no evidence as to which of the parties drove the vehicle.  There is no evidence as to whether Defendant was armed with a firearm or other type deadly weapon at the time in question.  There is no evidence of any actions showing Defendant and the other parties had an understanding or design to commit a felony.  
	After reviewing the relevant evidence in the light most favorable to the jury's possible verdict of conviction, the court has to determine that a rational trier of fact could not find beyond a reasonable doubt the essential elements to convict Defendant either as the primary actor or as a party to the offense charged in the indictment.  Thus, the court should find that the evidence is legally insufficient, direct a verdict of not guilty, and render a judgment of acquittal.
	Insufficiency for Accomplice Witness(es) Not Corroborated
	In challenging the sufficiency of the evidence, defendant submits that aside from the testimony of the accomplice witnesses, the nonaccomplice evidence shows no more than his nervousness before, and his presence at the time of, the officers' arrival, which are legally insufficient to support the conviction.  This court should agree.
	MURDER CASE:  Having each been also prosecuted for the offense for which defendant was being tried, state's witnesses ______________ and____________ were each an accomplice as a matter of law.  McFarland v. State, 928 S.W.2d 482, 544 (Tex.Cr.App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997).  As an accomplice witness, __________ and ____________ were each discredited to the extent that either's testimony alone or jointly cannot furnish the basis for the conviction, Walker v. State, 615 S.W.2d 728, 731 (Tex.Cr.App. 1981), "unless corroborated by other evidence tending to connect [defendant] with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."  Tex. Crim. Proc. Code article 38.14 (Vernon 1974).
	The sufficiency of the corroboration is tested by eliminating from consideration the testimony of the accomplice witness, and then examining the other evidence to ascertain if it tends to connect appellant with the commission of the offense.  It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt.  In testing the sufficiency of corroboration, each case must be considered on its own facts and circumstances.  Callaway v. State, 818 S.W.2d 816, 832 (Tex.App.‑Amarillo 1991, pet. ref'd).
	Aside from the testimony of each accomplice, the State presented, and relies upon, evidence that defendant was there.  Upon initial contact with the officer, defendant appeared nervous.  Though defendant was present at the scene, no other evidence linked him to crime charged.  
	DRUG CASE:  Defendant was not shown to be the renter or possessor of the premises.  None of the controlled substance nor the drug paraphernalia was in defendant's plain view; indeed, the controlled substance was found in an enclosure in a bedroom closet and not readily accessible to defendant.  There was no indication of an odor of contraband around defendant or that he possessed any contraband when arrested.  Neither was there any suggestion that he made furtive gestures, made incriminating statements when arrested, or attempted to flee when the officers entered the room.
	At most, the nonaccomplice evidence shows defendant's presence at the scene where a controlled substance offense occurred, and his earlier appearance of nervousness to the officer.  However, the mere presence of defendant in the living area, even if in the company of an accomplice who was in the bedroom, shortly before or after the commission of the offense is not, in itself, sufficient corroboration.  Meyers v. State, 626 S.W.2d 778, 780 (Tex.Cr.App. 1982).  Nor is defendant's appearance of nervousness to the officer, who never explained why he thought defendant appeared nervous, sufficient corroboration, either alone or coupled with defendant's presence, for the appearance of nervousness is consistent with innocent activity. Holladay v. State, 805 S.W.2d 464, 472‑473 (Tex.Cr.App. 1991); Glass v. State, 681 S.W.2d 599, 602 (Tex.Cr.App. 1984).
	It follows that the nonaccomplice evidence is legally insufficient to tend to connect defendant with the commission of the offense charged. As a result, any rational trier of fact could not return any verdict except an acquittal.  Ex parte Reynolds, 588 S.W.2d 900, 902 (Tex.Cr.App. 1979).  Consequently, any judgment of conviction must be reversed and acquittal ordered.  Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Meyers v. State, 626 S.W.2d at 781.
	In Rios v. State, 982 S.W.2d 558, 560-561 (Tex.App.-San Antonio 1998, pet. ref'd), the court said:

	Rios asserts the trial court erred in denying his motion for an instructed verdict because the nonaccomplice testimony was insufficient to connect him with possession of marijuana.

	An appeal from the denial of an instructed verdict is a challenge to the sufficiency of the evidence. Badillo v. State, 963 S.W.2d 854, 856 (Tex. App.‑‑San Antonio 1998, pet. ref'd); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993).  In deciding whether corroborating evidence is sufficient, this court must "eliminate from consideration the evidence of the accomplice witness and then [] examine the evidence of other witnesses" to determine whether there is "evidence of incriminating character which tends to connect the defendant with the commission of the offense." Edwards v. State, 427 S.W.2d 629, 632 (Tex. Crim. App. 1968). Thus, we do not review the nonaccomplice testimony to determine if it is sufficient to support a finding of guilt but to determine whether it tends to create a connection between the accused and the offense. See Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992).

	It is well settled that the mere presence of an accused in the company of the accomplice during the commission of the crime is not, by itself, sufficient to corroborate accomplice testimony. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Cox, 830 S.W.2d at 611; see, e.g., Howard v. State, 972 S.W.2d 121, 128 (Tex. App.‑‑Austin 1998, no pet. h.) (holding evidence that defendant was seen leaving a room just before drugs were found in that room led "only to the weakest of inferences" regarding actual possession); Moreno v. State, 761 S.W.2d 407 (Tex. App.‑‑Houston [14th Dist.] 1988, pet. ref'd) (finding insufficient corroborating evidence to support delivery of cocaine charge where testimony showed defendant, a passenger in accomplice's vehicle, talked with accomplice before the attempted drug transaction, stayed in the car while accomplice attempted to complete sale, and looked at undercover police while they waited to arrest the parties); Navejar v. State, 760 S.W.2d 786 (Tex. App.‑‑Corpus Christi 1988, pet. ref'd) (finding insufficient corroborating evidence for delivery of heroin charge where testimony only showed defendant followed accomplice in another car, parked next to accomplice, and stayed in his car while accomplice attempted to sell drugs). But "proof that an accused was at or near the place where the crime occurred at or about the time that it happened, along with evidence of other circumstances can be sufficient corroboration to support a conviction."  Cox, 830 S.W.2d at 611. Other circumstances, which, when coupled with the presence of the defendant, have been found to constitute sufficient corroborating evidence, include a defendant's furtive behavior, see Spratt v. State, 881 S.W.2d 65, 67 (Tex. App.‑‑El Paso 1994, no pet.), and flight from the scene. See Passmore v. State, 617 S.W.2d 682, 684‑85 (Tex. Crim. App. 1981), overruled on other grounds by Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988).

	Here, the nonaccomplice testimony establishes Rios was a passenger in the car in which the bag of marijuana was found and Sifuentes looked at Rios before he consented to a search of the trunk. The mere fact that Rios was present in the car where the drugs were found is not enough to sufficiently corroborate Sifuentes' testimony. Dowthitt, 931 S.W.2d at 249. The only other circumstance the State can point to as corroborating evidence is Sifuentes' glance at Rios. But nothing in the record shows Rios replied to Sifuentes' glance either verbally or nonverbally‑‑there is no evidence that connects Sifuentes' glance to the crime of possession. The record is completely lacking in evidence that Rios acted suspiciously during the police pursuit, stop, or arrest. We therefore hold the corroborating evidence is insufficient to support Rios' conviction for possession of marijuana because it does not tend to connect Rios with the commission of the offense. See Navejar, 760 S.W.2d at 788 (holding there was no evidence to connect accusatory statements by one of the accomplices at the scene that appellant "is the guy" with the crime of delivery of heroin; therefore, the only corroborating evidence was appellant's presence at the scene, which is insufficient by itself). Because there was insufficient corroborating evidence, the trial court erred in not instructing a verdict in favor of Rios. TEX. CODE CRIM. PROC. ANN. arts. 38.14, 38.17 (Vernon 1979).

	The question then is whether the trial court's error is harmless or reversible under Texas Code of Criminal Procedure Rule 44.2. Because the rule requiring sufficient corroborating evidence in a case based on accomplice testimony is statutory and not constitutional, Badillo, 963 S.W.2d at 857, we conduct the harm analysis required by Rule 44.2(b).  Under 44.2(b), any nonconstitutional "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  If, on the record as a whole, it appears the error "did not influence the jury, or had but a slight effect," we must consider the error harmless and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
 
	Here, the court's failure to grant an instructed verdict had a great effect on the jury because they were able to find Rios guilty when they should have been instructed to acquit Rios by operation of law. Only if the jury had returned a verdict of not guilty could we find the court's error was harmless. Consequently, we hold the trial court committed reversible error by not granting Rios an instructed verdict based on the insufficiency of corroborating evidence. Because we find reversible error on this point, we need not reach Rios' other points of error. We reverse the court's judgment and enter a judgment of acquittal.

MOTION TO SUPPRESS NON-CONFRONTED TESTIMONIAL STATEMENTS
AFTER RULE 103(c) HEARING SANS JURY

	To provide effective counsel and a fair trial, this defendant moves pursuant to the due process and confrontation clauses of U.S. Constitution Amendments XIV and VI and the Texas Constitution's Article 1, § 10, and Tex.Evid.Rule 103(c) for an order to hold a hearing without the jury pursuant to Tex.Evid.Rules 103(c) and its Chapter 8 and grant defense objections to "hearsay and deprivation of defense right to confront each declarant" and to suppress and prohibit the government and each of its witness from inquiring of or testifying in-court about any extrajudicial statement or its functional equivalent, for admission of such testimonial hearsay statements violates the Confrontation Clause in both the U.S. Constitution Amendment XIV and VI's and the Texas Constitution's Article 1, § 10.  Thus, defense objects to such admission because this fundamental procedural rule under the "Confrontation Clause" and constitutional considerations requiring testimonial statements to be subject to cross-examination in criminal cases do not evaporate when such testimony falls within a modern hearsay exception or exemption first recognized after 1791.  Such statements are constitutionally unreliable until defense has an opportunity to fully confront each serial declarant who would reasonably expect his own statement to be used for evidentiary purposes:  i.e., statements like prior testimony or those made in anticipation of litigation, out-of-court accusations, structured police or prosecution's non-accusatory questioning, accuser's formal or informal statement describing past events to government officer(s) involved in statement production of testimony with an eye towards trial.  Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).  
	Respectfully submitted by defendant's attorney,

	O R D E R

	After considering this motion, IT IS ORDERED that this motion's hearing request be and it is hereby in all things GRANTED and the State and its witness may not mention any testimonial statement or hearsay evidence for each is inadmissible until outside the jury's presence the Court rules as to whether each is admissible; and after conducting said hearing sans jury, IT IS FURTHER ORDERED that all testimonial statements by any declarant whom this defendant has not confronted by cross-examination, be and the same is each hereby suppressed regardless of whether each is admissible under Tex.Evid.Rules 402 and Chapter 7.
	Signed for entry today, _________________________, 20__.

							_______________________________
							JUDGE PRESIDING

MOTION FOR ADDITIONAL TIME TO CONDUCT VOIR DIRE

	                     , the above defendant, by and through his undersigned counsel and pursuant to the 6th and 14th amendments to the U.S. Constitution and Article I, Section 9 of the Texas Constitution, states to the Court that: 
1.	The above defendant, is presently charged with the felony/misdemeanor offense of "                 ".
2.	In order to render reasonably effective assistance of counsel and assure that the above defendant receives a fair and impartial jury trial, it is necessary for undersigned counsel to extensively voir dire the jury panel and individual members of the venire on certain principles of law, burden of proof, defenses, bias or prejudice which a potential jury may harbor.
3.	Undersigned is prepared to proffer to the Court a list of questions defense intends to present to the jurors, thus demonstrating those questions are not irrelevant, immaterial, or repetitious.
4.	Undersigned specifically requests not more than two hours per side to voir dire the jury, for adequate time to voir dire the jury is essential to defense's intelligent exercise of the peremptory challenges.
5.	This time request is reasonable.
6.	To unreasonably limit the time for defense's voir dire will deny defendant the fair trial and counsel's effective assistance as guaranteed by the U.S. and Texas Constitutions.
7.	Precedents teach a trial court reversibly errs in unduly restricting the extent of voir dire examination if defendant could not intelligently exercise his right to make peremptory challenges.  Clark v. State, 608 S.W.2d 667 (Tex.Cr.App. 1980); De La Rosa v. State, 414 S.W.2d 668 (Tex.Cr.App. 1967) [20 minutes for voir dire was found to be unreasonable].
8.	Thus, the above defendant respectfully prays the learned Court grant this above motion so that the defendant be entitled to voir dire for a period of up to two hours and for such other and further relief is necessary and just.	

MOTION TO SUPPRESS EVIDENCE OF DEFENDANT'S
SILENCE AFTER MIRANDA WARNINGS ADMINISTERED
	The above Defendant moves the Court to suppress any evidence that the Defendant remained silent after he was given the Miranda warnings by an peace officer, because:
1.	It would be fundamentally unfair and a deprivation of due process to allow the Defendant's silence after initial detention, or during custodial interrogation or after arrest to be used to impeach an explanation subsequently offered at trial;
2.	It would be a violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution for the Court to allow the use for impeachment purposes or for final argument purposes of the silence of the Defendant after Defendant's receiving Miranda warnings;
3.	It would be a violation of the Due Course of Law Clause of Section 19 of Article 1 of the Texas Constitution for the Court to allow the use for impeachment purposes or for final argument purposes of the silence of the Defendant after Defendant's receiving Miranda warnings; and
4.	It would be a violation of Article 38.23 of the Texas Code of Criminal Procedure for the Court to allow the use for purposes of impeachment or final argument of the silence of the Defendant after Defendant's receiving Miranda warnings.

MOTION TO SUPPRESS CERTAIN EVIDENCE
	The above defendant moves the court to suppress the State and its witnesses from offering into evidence this type evidence:
1.	Whether the non-complainant witness thought defendant committed all or any part of the crime charged herein, for:
a.	a non-eyewitness's personal opinion or speculation as to the jury's ultimate responsibility is not relevant.  See Beltran v. State, 593 S.W.2d 688, 690 (Tex.Cr.App. 1980); Easterling v. State, 710 S.W.2d 569, 574 (Tex.Cr.App. 1986);  Schaffer v. State, 777 S.W.2d 111 (Tex.Cr.App. 1989).
b.	a non-eyewitness's opinion as to whether an unseen event occurred can only be based in inadmissible back door hearsay.  Schaffer v. State, 777 S.W.2d 111 (Tex.Cr.App. 1989). 
c.	such damaging hearsay testimony may not be admitted without the State's establishing a legitimate purpose for the otherwise inadmissible hearsay evidence. T.R.Cr.E. 802; DeBose v. State, 744 S.W.2d 328 (Tex. App.--Beaumont 1989, pet.ref'd) [conviction reversal for admission of such damaging hearsay testimony since the appeals court rejected as mere sophistry the State's contention that all it need to state to the trial court to avoid a hearsay objection was that hearsay was being offered only to show the statement was made].
2.	Hearsay inadmissible under T.R.Cr.E. 802 and 403, for in light of proper limiting jury instructions, out-of-court statements cannot be considered in determining sufficiency because it is hearsay properly objected to at trial.  Chambers v. State, 711 S.W.2d 240, 245-247 (Tex.Cr.App. 1986); Morales v. State, 745  S.W.2d 483, 486 n.2 (Tex.App.--Corpus Christi 1988, no pet.); Hamilton v. State, 682 S.W.2d 322 (Tex.App.--Dallas 1984, pet. ref'd) [acquittal]. 
3.	The calling of a witness to have admitted in evidence prior inconsistent statements, knowing the witness is not going to initially testify to what the State wants and needs to obtain a conviction, for:
a.	the prosecutor, whose primary purpose really is to place incriminating hearsay before the fact finder under the guise of impeachment, prejudices the defendant under T.R.Cr.E. 403 and reversibly taints any conviction.  See Vargas v. State, 442 S.W.2d 686 (Tex.Cr.App. 1969); Wall v. State, 417 S.W.2d 59 (Tex.Cr.App. 1967); Morales v. State, 745 S.W.2d 483, 490-491 (Tex.App.--Corpus Christi 1988, no pet.).  See also U.S. v. Hogan  763 F.2d 697, 703 (CA5 1985) [holding that a prosecutor may not introduce a prior inconsistent statement under the guise of F.R.Cr.E. 613 (see T.R.Cr.E. 612) when its "primary purpose" is to place incriminating hearsay before the jury]; U.S. v. Johnson, 802 F.2d 1459 (CA D.C. 1986); U.S. v. Shoupe, 548 F.2d 636, 638, 643 (CA6 1977) [reversal]; U.S. v. Morlang, 531 F.2d 183 (CA4 1975) [reversal]. 
b.	while T.R.Cr.E. 607 allows a party to impeach his own witness, there appears to be an exception when the primary reason for calling him is to impeach that witness or introduce otherwise inadmissible evidence.  The commentary to that Rule seems to recognize this exception when it states:
	The federal courts have interpreted the language of Rule 607 to prohibit a party from calling a witness for the "sole" or "primary" purpose of impeaching him.  U.S. v. Miller, 664 F.2d 94, 97 (5th Cir. 1981), cert. denied, 459 U.S. 854 (1982).  Further, the prosecution cannot call a witness for the sole purpose of impeaching that witness with otherwise inadmissible hearsay statements.  U.S. v. Hogan 763 F.2d 697, 701-3 (5th Cir. 1985).

	c.	the Federal Courts have recognized this exception and their rule is the same as in Texas.  U.S. v. Hogan, 763 F.2d 697 (CA5 1985); U.S. v. Couch, 731 F.2d 621 (CA9 1984), cert. denied, 469 U.S. 1105, 105 S.Ct. 778, 83 L.Ed.2d 773 (1985); U.S. v. Miller, 664 F.2d 94 (CA5 1981), cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 106 (1982); U.S. v. Fay, 668 F.2d 375 (CA8 1981); U.S. v. Holliday, 566 F.2d 1018 (CA5 1978), reh. denied, 573 F.2d 1309, cert. denied, 439 U.S. 831, 99 S.Ct. 108, 58 L.Ed.2d 125 (1978); U.S. v. Ragghianti, 560 F.2d 1376 (CA9 1977); U.S. v. Livingston, 661 F.2d 239 (CA DC 1981); U.S. v. Gomez-Gallardo, 915 F.2d 553 (CA9 1990).

	SPECIFIC BRADY REQUEST
	         , the above accused, moves pursuant to Tex.Crim.P.Code article 38.14 and Brady v. Maryland, 373 U.S. 83 (1963), U.S. v. Bagley, 473 U.S. 667 (1985) [impeaching as well as exculpatory evidence is favorable to the accused under Brady], and Kyles v. Whitley, 501 U.S. 419 (1995) for the state's DA to disclose to defense the following inclupatory, exculpatory, impeaching and or mitigating evidence about this case's alleged offense(s) perpetrator(s):
1.	state exculpatory, impeaching and or mitigating all information tending to discredit or impeach the alleged victim's identification of this defendant;
2.	state exculpatory, impeaching and or mitigating all information about the alleged victim's identifying anyone else as the perpetrator of that offense; 
3.	state all exculpatory, impeaching and or mitigating information tending to show that above defendant is not the person guilty of the offense in question; 
4.	state all mitigating information tending to show that this defendant probably should receive a sentence of less than the statutory maximum herein; and
5.	state all inclupatory information other than that from each accomplice that the State intends to present to the jury which tends to connect defendant with the commission of the offense being prosecuted.

DEFENSE'S REQUESTED INSTRUCTIONS A (CONTROLLED SUBSTANCE)
	The above defendant moves the district court to include in the court's final jury instructions to the jury at the not guilty phase in the above case all the law contained in paragraphs 1 through 29, which paragraphs follow this page and are contained on pages 2 through 9 of this particular document.
ORDER

	The foregoing requested instructions were timely presented to the Court and it is ORDERED by the Court that as to that request's paragraphs 1 through 29 those requests are hereby granted, except said requests are denied as to said paragraphs numbered ________________________________________________________________________.
	SIGNED for entry today, _________________, 200__.
							______________________________
							JUDGE PRESIDING

1.	A person commits an offense only if he voluntarily engages in conduct including an act or possession.
2.	You are instructed that by the term "Possession" means actual care, custody, control, or management.	"Possession" is a voluntary act if the possessor knowingly obtains, or receives the thing possessed, or is aware of his control of the thing for a sufficient time to permit him to terminate his control.
3.	Now if you believe that the alleged cocaine, if any, was found in the possession of defendant, but you further believe, or have a reasonable doubt thereof, that the possession was not the voluntary act of the defendant or that the defendant was not aware of his control of the alleged cocaine, if any, for a sufficient time to permit him to terminate his control, you will acquit the defendant and say by your verdict not guilty. 
4.	For authority, see Texas Penal Code Sections 1.07(a)(39) and 6.01(b); McCormick et al., 8 Texas Practice § 132.02 at 610.
5.	So, if you find from the evidence, or if you have a reasonable doubt thereof, that the officer did place the alleged cocaine, if any, in the cadillac, then you must find for the defendant and say by your verdict not guilty.
6.	For authority, see Ramos v. State, 934 S.W.2d 358, 361- 362 (slip opinion pages 4-7 Tex.Cr.App. 1996), cert. denied, 520 U.S. 1198 (1997) [among other evidence of sufficiency were defendant's deceptive statements to law enforcement officers, which are probative to show consciousness of guilt]; Zuniga v. State, 664 S.W.2d 368, 370 (Tex.App.))Corpus Christi 1983, no pet.) [since an unbelievable denial of the existence of a fact can be even more probative as to lack of credibility than an affirmative admission of the fact, it was reversible error for trial court to deny defendant the opportunity to question the witness in the presence of the jury because the jury should have been given the opportunity to observe the witness's response to the question]; Hart v. Berko, Inc., 881 S.W.2d 502, 507 (Tex.App.))El Paso  1994, writ denied) [to the extent that a witness issued blanket denials regarding his or her conduct, the jury could use those denials as support for an opposite inference]. 
7.	So, if you find from the evidence beyond a reasonable doubt that the officer did not place anything in the cadillac but found the alleged cocaine, if any, in the cadillac, but you further find from the evidence that at the date and time the offense is alleged to have occurred, the said defendant _______________ did not voluntarily possess, or did not intentionally or knowingly have actual care, custody, control or management of the alleged cocaine, if any, for at least a sufficient period of time to permit him to terminate his actual care, custody, control or management, if he had any actual care, custody, control or management whatever, or if you have a reasonable doubt as to such voluntary and intentional or knowing possession by the defendant, then you will find for the defendant and say by your verdict not guilty.  
8.	For authority, see Reed v. State, 479 S.W.2d 47 (Tex.Cr.App. 1972); McClung, Jury Charges For Texas Criminal Practice at 292-293 (Rev. Ed. 1996).
9.	You are instructed that if you believe that at the time the said defendant ____________ voluntarily possessed the alleged cocaine, the defendant did not know that the alleged cocaine was either a controlled substance or cocaine, if it was, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty.
10.	For authority, see Smith v. State, 458 S.W.2d 923 (Tex.Cr.App. 1970); McClung, Jury Charges For Texas Criminal Practice at 293 (Rev. Ed. 1996).  
11.	Proof of the actor's knowledge, at the time he undertakes or continues conduct, that he is acting in the presence of a controlled substance, is essential to conviction for the conduct of possessing the alleged cocaine.
12.	Mere presence of a person at the place where a controlled substance is found, does not of itself show knowing or intentional possession.
13.	You are instructed that if you believe that the alleged cocaine, if any, was in the cadillac at the same time the said defendant ______ , was in the cadillac, the mere presence of the defendant at the place where the alleged cocaine, if any, was found, does not of itself show voluntary and intentional or knowing possession.  Therefore, if you find from the evidence that the defendant _______ was merely present in the cadillac unintentionally or unknowingly with the cocaine, if any, involuntarily or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty.
14.	For authority, see McShane v. State, 530 S.W.2d 307 (Tex.Cr.App. 1975); Woolridge v. State, 514 S.W.2d 257 (Tex.Cr.App. 1974); McCormick et al., 8 Texas Practice § 132.02, n. 1 at 607-608 [last one] and §132.04, n. 1; see Reyes v. State, 575 S.W.2d 38 (Tex.Cr.App. 1979) [mere presence with another who is possessing marijuana does not justify joint possession]; Sewell v. State, 578 S.W.2d 131 (Tex.Cr.App. 1979); Dubry v. State, 582 S.W.2d 841 (Tex.Cr.App. 1979).
15.	You are further instructed that the mere presence, if any, of defendant __________ in the cadillac would not alone constitute him guilty of the offense charged by indictment in this case.  If you find from the evidence beyond a reasonable doubt that someone other than the officer and the defendant __________ did voluntarily and intentionally or knowingly possess the cocaine, if any, in the cadillac, and that the defendant ________ was present, but you further find from the evidence, or you have a reasonable doubt thereof, that the defendant _________ did not voluntarily and intentionally or knowingly possess the cocaine, if any, in the cadillac, then you will find the defendant not guilty and so say by your verdict.
16.	For authority, compare Lopez v. State, 468 S.W.2d 365 (Tex.Cr.App. 1971); Randolph v. State, 493 S.W.2d 869, 873 (Tex.Cr.App. 1973).
17.	You are further instructed that to be guilty of possession of the controlled substance cocaine, as alleged in the indictment, the defendant must have voluntarily and intentionally or knowingly possessed the cocaine, if any.  Therefore, if you believe from the evidence beyond a reasonable doubt that defendant ________ did possess the cocaine, but you have a reasonable doubt as to whether he voluntarily and intentionally or knowingly possessed the cocaine, if any, then you will acquit the defendant and say by your verdict not guilty.
18.	You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, an omission or possession.  Conduct is not rendered involuntary merely because the person did not intend the results of his conduct.
19.	For authority, see Texas Penal Code Section 6.01; Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App. 1979); Garcia v. State, 605 S.W.2d 565 (Tex.Cr.App. 1980); see McClung, Jury Charges For Texas Criminal Practice at 229-230 (Rev. Ed. 1996); McCormick et al., 8 Texas Practice § 107.04.
20.	You are instructed that if you find from the evidence, or if you have a reasonable doubt thereof, that at the time of the defendant's talking to the officers at the convenience store, he had no knowledge that the cocaine, if any, in question was in the cadillac, if it was in that vehicle, then you will acquit the defendant and say by your verdict not guilty.
21.	For authority, see Lewis v. State, 503 S.W.2d 806 (Tex.Cr.App. 1974); Meadowes v. State, 368 S.W.2d 203 (Tex.Cr.App. 1963); see McClung, Jury Charges For Texas Criminal Practice at 284 (Rev. Ed. 1996).
22.	Under our law a person is criminally responsible if the result would not have occurred but for his conduct, operating alone or concurrently with another cause, unless the concurrent cause was sufficient to produce the result and the conduct of the actor was clearly insufficient to produce the result.
23.	For authority, see Texas Penal Code Section 6.04; Robbins v. State, 717 S.W.2d 348, 351 (Tex.Cr.App. 1986).
24.	You are further instructed that if you find from the evidence, or if you have a reasonable doubt thereof, that defendant did not know that the alleged controlled substance cocaine, if any, was in the cadillac he was driving, if he was, at the time of the seizure of the cocaine, if any, by the officer, and that same cocaine, if any, was not the property of defendant, which he had forgotten, if he did, was there, then you will acquit the defendant and say by your verdict not guilty.
25.	For authority, see McClung, Jury Charges For Texas Criminal Practice at 210 (Rev. Ed. 1996).
26.	You are instructed that certain out-of-court statements made by person(s) other than defendant ____________ were admitted in evidence in this case.  Such other person's statements were admitted only for the purpose of showing, if they do, what was heard by the police officers during their encounter with the four subjects at the convenience store, and you cannot, and you must not, consider any such out-of-court statement by anyone other that the defendant, or any part thereof, as evidence of the truth of any matter asserted in such statements or as evidence from which you can infer defendant is guilty as charged herein.
27.	For authority, compare McClung, Jury Charges For Texas Criminal Practice at 277-278 (Rev. Ed. 1996).
28.	You are instructed that if there is any evidence before you in this case regarding the defendant's passengers having committed offenses other than the offense alleged against the defendant in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant's passengers committed such other offense(s), if any were committed, and even then you may only consider the same in determining the __________, if any, of the defendant in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose, for each person has the right to associate with others as guaranteed by the First Amendment to the United States Constitution. 
29.	For authority, compare McClung, Jury Charges For Texas Criminal Practice at 286 (Rev. Ed. 1996); Lee v. State, 496 S.W.2d 616 (Tex.Cr.App. 1973).

MOTION TO SEQUESTER JURY
	The above Defendant moves pursuant to Tex. Code Crim. Procedure (TCCP) article 35.23, for an order that the court sequester the jury, after having given its charge to the jury, and order that the jury not be allowed to separate, except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered in the above cause not only in the adjudication of guilt phase of the trial but also in the penalty phase of the trial.
ORDER
	After considering the above timely filed motion before and after the court read its charge to the jury in the not guilty phase of the trial herein, the court ruled.  It is ordered by the court that the above motion be and the same is hereby in all things _____________________.
	Signed for entry today, _______________________, 200__.

								_________________________
								JUDGE PRESIDING

ORDER

	After considering the above timely filed motion before and after the court read its charge to the jury in the penalty phase of the trial herein, the court ruled.  It is ordered by the court that the above motion be and the same is hereby in all things _____________________.
	Signed for entry today, _______________________, 200__.

								___________________________
								JUDGE PRESIDING

MOTION FOR THE COURT TO RULE ON FINAL ARGUMENT OBJECTIONS
	The above Defendant files this motion, saying:
1.	To preserve error for appeal, defense counsel must object to the State's improper argument at the time it is made.  Sometimes when defense counsel objects, courts often comment, "The jury will recall the evidence," or "Stay in the record".  Such comment does not constitute a ruling on the objection sufficient to preserve error for appeal.  Error is waived unless an objection is pressed to the point of obtaining an adverse ruling.
2.	If parties' counsel objects during final argument, Defendant requests  the court to either sustain or overrule the objection and not require defense counsel either to specifically ask for a ruling in the presence of the jury or to have to object to the court's refusal to rule on defense objections.

MOTION FOR COURT TO REQUIRE STATE TO MAKE DISCLOSURE
UNDER ARTICLE 39.14(b), V.A.C.C.P.

	__________________, the above defendant, moves pursuant to Tex. Code Crim. P. art. 39.14(b) for the court to order the opposing party (the State) to disclose to the party making this motion the name and address of each person the opposing party may use at trial to present evidence under Texas Evidence Rules 702, 703, and/or 705.

REQUEST FOR FREE REPORTER'S PARTIAL RECORD
	Under his rights to effective counsel, due process and equal protection guaranteed by U.S. Constitution's Amendments VI and XIV, this indigent defendant seeks an order that at no expense to himself or his counsel the court's reporter soon prepare a reporter's record of only all testimony presented by each State's witness or defense witness, who was or is employed as a law enforcement agent, to any fact-finder during pre-trial hearing or trial of any defendant indicted as criminally responsible for the same aggravated robbery with which this defendant is charged herein.  Legal source:  Britt v. North Carolina, 404 U.S. 226 (1971); and compare McKibbon v. State, 749 S.W.2d 83, 85 (Tex.Cr.App. 1988), cert. denied, 488 U.S. 859 (1988).  Undersigned's affidavit is attached and incorporated herein for all purposes.  	Respectfully submitted by defense attorney,
ORDER
	After considering applicable law, the above motion and supporting evidence, it is ordered that this court's reporter _____________ shall within the next 30 days prepare at Starr County's expense a reporter's record of all testimony presented by each State's witness or defense witness, who was or is employed as a law enforcement agent, during any pre-trial hearing or trial in this court of defendant Alfredo Hernandez in cause no. 04-CRS-698, who is a person named in an indictment returned by a Starr County grand jury as being criminally responsible for the same aggravated robbery that this defendant is charged with herein.

State of Texas, County of Hidalgo	AFFIDAVIT
	Before me came the undersigned affiant who, after being duly sworn, said:
	"My name is Joseph A. Connors III.  I am over eighteen years of age.  I have personal knowledge of each fact stated herein.  I have a good faith basis for each opinion stated herein. I am an attorney licensed by the Texas Supreme Court since September 1973.  During that period of time, I have become an expert in Texas criminal law.  Since 1979, I have been certified in criminal law by the Texas Board of Legal Specialization.  I was appointed by the presiding judge of the 229th district court to represent the defendant in the above cause.  There can be no equal justice if the fairness of a trial depends on how much money a defendant has to fight for his liberty.  If I were retained counsel herein with adequate funds for expenses, I would order and personally pay for preparation of the same reporter's record above requested, for it not only contains the State witnesses' stories under oath but also contains much of the government's dossier and theory of the case against this defendant.  This defendant and I have a particularized specific need to use same to prepare a defense and as a discovery device and as a tool at trial to present the evidence the State fails to, to adequately cross-examine State's witnesses and permit the possible impeachment of one or more of the State's various witnesses herein.  I cannot begin this jury trial until after I carefully study said reporter's record so I can effectively represent this defendant during:  (a) pretrial preparation as I attempt to thoroughly investigate State witnesses' motivation and biases reflected in any friendship, financial or other relationship this cause's victim wife's husband Mr. Bazan has with the lead sheriff's investigator and other public servants employed by Starr County, (b) studying one or more state witness's purposeful lying in a statement before either the Hernandez case jury or an investigating officer and/or a 229th judicial district prosecutor, (c) contested trial herein now that co-defendant Alfredo Hernandez was tried, convicted and sentenced by jury in this court in cause no. 04-CRS-698 between August 23 to August 29, 2005.  With obligations to many other defendants in various trial and appellate courts, I was unable to be present during the entire Hernandez trial in the 229th district court; but I only was present during less than 90 minutes of that multi-day trial and I heard a State witness testify on the p.m. of August 25, 2005, and refer to 'Ed or Eddie ...', whom in context had to be my above client, who was incarcerated and not present during Hernandez' trial and thus is unaware, except possibly by subsequent hearsay, of the testimony presented there by any State's witness.  I have spoken with Hernandez' attorney Richard Salinas, who told me to obtain the above sought prior testimony from the Hernandez trial.  The Bazan witnesses' trial testimony there seems to be contrary to my incomplete investigation's results which presently indicate it was more than four months after this defendant's arrest for the charge indicted herein before any Bazan victim asserted this defendant on the day in question entered their home or was present near their home.  That testimony should be of benefit to this defendant in tieing the three eyewitness victims down to a story that less than ten suspects entered their residence though now many more suspects have been accused of being criminally responsible for that aggravated robbery of those same three victims.  Under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, the trial prosecutor has a pre-trial and in-trial due process and ethical duties to inform this defendant of each State witness's false or misleading answer provided during this defendant's trial when compared with said witness's prior testimony at the Hernandez trial; but without the requested reporter's record, I will be unable to adequately impeach any witness who denies having made that prior other answer during testimony at Hernandez' trial while I was not present."	
								__________________________
								Affiant Joseph A. Connors III

	Sworn to and subscribed before me the undersigned authority on _____________, 200__.

								__________________________
								Notary Public for State of Texas

	REQUEST FOR A LIMITING INSTRUCTION CONCERNING
CERTAIN PROSECUTION EVIDENCE
	Pursuant to Rule 105 of the Texas Rules of Evidence, and after the Court has ruled the prosecution may present certain objected to evidence, the above Defendant moves the Court to restrict and limit the admissibility of all such evidence, including such "relevant or hearsay or bad act or impeachment" evidence, to its proper scope and purpose by the Court's contemporaneously giving a proper fairly-worded limiting instruction with the receipt into evidence of each incidence of all of said evidence in question, which is admitted under Chapters 4, 7 and 8 of the Texas Rules of Evidence.  See Rankin v. State, 974 S.W.2d 707, 711-713 (Tex.Cr.App. 1996) [held that Tex.R.Crim.Evid. 105 requires a limiting instruction, upon proper request, at the time when evidence is admitted, although limiting instructions may be requested and given in the Court's Charge at the end of trial]; see also McNiel v. State, 757 S.W.2d 129, 136 (Tex.App.))Houston [1st Dist.] 1988, no pet.) [held even if there was error in the lack of a limiting instruction in the Court's Charge, there was no request for the trial court to instruct the jury on the limited admissibility of certain evidence at the time it was admitted and the record shows beyond a reasonable doubt that such an error did not contribute to defendant's conviction or punishment, Tex.R.App.P. 81(b)(2)]; Matter of A.F., 895 S.W.2d 481, 484 (Tex.App.))Austin 1995, no writ). 

	MOTION IN LIMINE REGARDING STATE'S OBJECTIONS
	The above Defendant moves requesting the Court to instruct State's prosecutor(s) that when they deem it appropriate and necessary to object to any line of questioning or testimony or argument, that the prosecutor state each objection before the jury based on legal grounds and that said objections be concise, pertinent, and to the point; and that any argument or explanation of the prosecution's position related to the objection must be conducted outside the presence of the jury after the jury has been excused prior to any argument or explanation by the State on its objections.

MOTION FOR A HEARING TO TEST QUALIFICATIONS OF
PROSECUTION'S CHARACTER AND REPUTATION WITNESSES

	Concerning State's inquiry of any character or reputation witness, defendant moves the Court to allow the defense a hearing out of the presence of the jury to test the qualifications of the State's character and reputation witnesses to express their opinion as to Defendant's character  or reputation before such witness testifies to jury at the guilt or penalty stages in this case on the issue of the Defendant's character and/or reputation, and defense shows:
	1.	The Defendant believes that when Defendant places his character in issue, the prosecution will offer testimony as to the reputation and/or character of Defendant at the not guilty phase; and (b) at the hearing on punishment, the prosecution will offer testimony as to the reputation of Defendant.
	2.	If a reputation witness of the prosecution is permitted to first give his/her opinion as to the reputation of the Defendant before the jury, and it is then determined through cross-examination that such witness was not qualified to render such opinion, the harm and prejudice to the Defendant could not be cured by an instruction to disregard.

MOTIONS FOR PRETRIAL HEARING AND TO SUPPRESS UNDER TEXAS AND
FEDERAL LAWS ACCUSED'S STATEMENT ETC. (rev'd 11/27/2005 23 hrs.)

	Defendant moves the court for a hearing without the jury and for evidence exclusion.
I.  REQUESTS FOR HEARING AND FACTS FINDING
	Defendant asks the court to hold a pretrial hearing under Jackson v. Denno and to suppress any and all oral, written, or recorded statements of this accused under Mincey v. Arizona and Miranda v. Arizona and its progeny.  In the alternative, defendant asks the court to instruct the government's attorneys and witnesses not to mention or refer to, directly or indirectly, in the presence of the jury and not attempt to introduce into evidence any of this accused's oral or written custodial statements, whether incriminating or exculpatory, which were allegedly made to police or any person, until after approaching the bench and announcing an intention to do so, so the court may hold a hearing on each said statement's admissibility outside the jury's presence initially.  Defense also hereby requests that after said hearing, the court make findings of fact and conclusions of law, and to exclude said evidence.
II.  FACTS
	During various conversations with police, defendant was in custody, under arrest or deprived substantially of his freedom by the attendant conduct, police and the surrounding circumstances, when custodial interrogation or its functional equivalent began, the police warned defendant of his constitutional Miranda rights and his Tex.Cr.P.Code (TCrPC) article 38.22, § 2(a) rights, but the police deliberately dishonored defendant's invocation of his Miranda rights to counsel's presence and to remain silent; and __________________.
III.
	Pursuant to Tex.R.App.P. 33.1(a), Tex.R. Evid. 103(a) and (b) and TCrPC articles 28.01 and 38.23(a), defendant moves for suppression of:
1.	All his own actions, statements, oral or written, and evidence of any sort made as a result of custodial interrogation or its functional equivalent about any offense after police gave the Miranda rights warnings to defendant, who unequivocally claimed the right to remain silent or to counsel's presence before interrogation;
2.	All such evidence was deliberately obtained directly or indirectly as a result of such custodial interrogation, after defendant's alleged waiver of his Miranda rights;
3.	All actions, statements, oral or written, and evidence of any sort made by this defendant as a result of custodial interrogation, its functional equivalent or conversation after police gave defendant TCrPC article 38.22, § 2(a) rights warnings about any offense and he unequivocally claimed the right to remain silent or to counsel's presence; and _____________.
4.	All such evidence obtained directly or indirectly as a result of such custodial interrogation, after defendant's alleged waiver of the TCrPC article 38.22, § 2(a) rights; and
5.	All evidence derived directly or indirectly from the above illegally obtained evidence.
IV.
	The court should suppress those custodial statement(s), actions and their fruits, for: 6.	Their admission would be violative of defendant's rights under Miranda's and Amendment XIV's exclusionary rules under the due process clause and the privilege against self-incrimination without counsel's presence guaranteed under both  U.S. Constitution Amendment V, VI, and XIV, and Texas Constitution Article 1, §§ 10, 19 and 29 and/or TCrPC articles 1.05, 38.21, 38.22, § 2(a), and 38.23.
7.	They resulted from custodial interrogation violating U.S. Constitution Amendments V, VI and XIV.
8.	They resulted from interrogation that violated Miranda v. Arizona and its progeny.
9.	The State unconstitutionally obtained that statement(s) sometime after the police re-initiated the contact after defendant invoked and expressly refused to waive each of constitutional Miranda rights, including his right to counsel before interrogation. 10.The police actions in question constituted the functional equivalent of interrogation following defendant's invocation of his Miranda rights, thereby deliberately violating his rights to counsel before questioning and to silence rather than compelled self-incrimination.
11.	At the time of various conversations with certain government agents, this accused was in custody, under arrest or substantially deprived of his freedom by the attendant police conduct and the surrounding circumstances, when before custodial interrogation began this accused had neither been adequately instructed concerning each Miranda right nor had validly waived them.
12.	They resulted from interrogation that violated TCrPC article 38.22, § 2(a).
13.	The State involuntarily obtained that statement(s) after defendant invoked and expressly refused to waive each of the statutory rights under TCrPC article 38.22, § 2(a).
14.	Involuntary compelled were this accused's admissions to persons in authority, for same resulted from one or more of said authority persons' direct or implied coercion of this accused in violation of U.S. Constitution Amendments V and XIV's due process clause.
15.	They were involuntary and coercively enticed in violation of Tex. Const. article I, §§ 10, 19 and 29 and TCrPC article 38.21.
16.	They resulted from interrogation that violated Tex. Const. article I, §§ 10, 19 and 29, which require electronic recording of the entire process of custodial interrogation at the law enforcement officer's main offices.
17.	They are unreliable and more prejudicial than probative under Tex.Evid.R 403.
18.	They resulted from outrageous and abusive police tactics of psychologically interrogation that should have been recorded for review by parties' counsel, court and jury.
19.	Deprived even a guilty person of adequate "degree of mental freedom" to make a knowing, intelligent and voluntary waiver of his applicable constitutional and statutory rights.
20.	This accused was intimidated, coerced, and induced to make such statements by Government officers who elicited the accused's statement; this accused's giving of said information was not done freely, voluntarily, knowingly and intelligently; and that this accused made such coerced statements without counsel present and without a knowing waiver of this accused's rights both under U.S. Constitution Amendments V, VI and XIV and under Texas Constitution Article 1, §§ 10, 19 and 29 and TCrPC articles 38.21, 38.22 and 38.23.	

FIRST MOTIONS FOR NEW TRIAL AND TIMELY HEARING THEREON
TO THE HONORABLE JUDGE OF SAID COURT:
	Concerning the oral and written judgments herein rendered, this cause's Defendant ________ files this motion for new trial pursuant to Rule 21 of Texas Rules of Appellate Procedure (TRAP) and asks the trial court herein to hear this motion, grant a new trial, and rehear this entire criminal action after the trial court has set aside the verdict of guilt, sentence and judgment previously entered in the above case.  
I.  JURISDICTION
	This trial court has jurisdiction to grant all the requested relief after either defendant filed notice of appeal herein,  Ex parte Drewery, 677 S.W.2d 533 (Tex.Cr.App. 1984), or the entire record on appeal is prematurely filed in the appeals court before the date scheduled for a hearing on a motion for new trial.  Taylor v. State, 163 S.W.3d 277 (Tex.App.-Austin 2005, pet. dism'd).
II.  HEARING REQUEST
	Defendant requests a hearing be conducted on this motion in part to adduce facts not in the record so thereafter the trial court will have an informed opportunity to apply the applicable law to those facts and to grant a new trial in the above cause.
III.  HEARING'S NECESSITY
	There is a need for the trial court to hold a hearing on this motion, since this motion raises matters not determinable from the record, upon which defendant could be entitled to relief.  Reyes v. State, 849 S.W.2d 812, 816 (Tex.Cr.App. 1993); see Ex parte Wilson, 724 S.W.2d 72, 74 (Tex.Cr.App. 1987); and Randle v. State, 847 S.W.2d 576 (Tex.Cr.App. 1993).  Failure to hold a hearing would be an abuse of the trial court's discretion.  McIntire v. State, 698 S.W.2d 652, 658 (Tex.Cr.App. 1995) (citing Hicks v. State, 75 Tex.Crim. 461, 171 S.W. 755, 763 (1914); Reyes v. State, 849 S.W.2d 812, 816 (Tex.Cr.App. 1993).

IV.  GROUNDS
	Whether or not listed in TRAP 21, State v. Evins, 843 S.W.2d 576 (Tex.Cr.App. 1992), a court can reasonably grant a new trial herein in the interest of justice due to each of these below reasonable grounds for relief, since:
1.	The evidence is legally and factually insufficient to support defendant's conviction because the State failed to prove beyond a reasonable doubt:
a.	the defendant was not justified in acting in self-defense at the time and place in question; and/or
b.	the injury was a serious bodily injury under Texas statutory law. 
2.	Defendant was denied the fair trial guaranteed by the constitutions of Texas and the United States.
3.	Defendant was denied the due process and course of law guaranteed by the constitutions of Texas and the U.S.
4.	The State's prosecuting team withheld from defendant and trial defense counsel information that, considered as a whole, contained material exculpatory, impeaching or mitigating Brady material, and if said material had been presented to the trial jury as direct, circumstantial or impeaching evidence, there is a "reasonable probability" that a different result would have been obtained; and in other words, that means "that the suppression of the evidence 'undermined confidence in the outcome of the trial'", regardless of the good or bad faith of the prosecutor and even if the police had failed to disclose that evidence to that prosecutor or any one in the prosecutor's office.  See Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) [reversal is required if after considering the suppressed evidence collectively, the court finds there is a reasonable probability that a different result would have been obtained but for that suppression of the evidence that undermined confidence in the outcome of the trial, for there is no need for harmless error review because the test is the same]; U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) [impeaching evidence is favorable to the accused under Brady v. Maryland, 373 U.S. 83 (1963); however, the failure to disclose impeaching evidence on request constitutes constitutional error only if it deprives defendant of a fair trial, i.e., the suppression undermines confidence in the outcome]; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) [exculpatory evidence].
5.	In violation of the due process clause of U.S. Constitution Amendment XIV, there were prosecutorial adversarial inquiries and arguments that took prejudicial advantage of the State's withholding of evidence from defense.
6.	In violation of the due process clause of U.S. Constitution Amendment XIV, the prosecutor's adversarial inquiries and arguments prejudicially cast a false light on the theory of defense, after the State withheld from defense counsel material information that defendant and his wife both conversed promptly with the prosecuting team's police officer(s) about defendant's need to strike in self-defense at the time and place in question.
7.	Since the jury was not instructed by the district court on how to use the evidence of prejudicial extraneous offense of the irrelevant 911 call incident that occurred weeks previously to the offense charged herein,

	a)	defendant did not receive a fair jury trial; and

	b)	defendant was deprived of his federal and state constitutional rights to due process and due course of law before he could be deprived of his liberty.
8.	Since at the time the evidence was inquired of by the state or admitted by the court, defense counsel did not preserve for appellate review:

a.	the prosecutor's lack of a good faith basis to believe that defendant had ever illegally been violent towards or criminally assaulted _________, his former girlfriend and now wife; 

b.	the prosecutor's lack of a good faith basis to believe that defendant had ever "beat up" ___________, his former girlfriend and now wife; 

c.	the prosecutor's lack of a good faith basis to believe that ___________ failed to orally tell any investigating police employee that it was in self-defense that _____ struck the alleged victim in this case;  

d.	the prosecutor's lack of a good faith basis to believe that ______ failed to orally tell any investigating police employee that it was in self-defense that ____ struck the alleged victim in this case;  
e.	alleged victim Rick Perez' lack of personal knowledge that ___________ had ever beat up _________, his former girlfriend and now wife; 

f.	the prosecutor's having ______ read aloud to the jury her prior out-of-court statement, though it was hearsay and made outside defendant's presence; 

g.	the prosecutor's having ________ admit that everything in her prior out-of-court (hearsay) statement was true;

h.	the prosecutor's acquiring _________'s truthful answer and thereafter inferring that true was Rick Perez's hearsay statement:  "I hope you don't have to call 911 again, for your boyfriend who (when) beats you up again." 

i.	the trial court's failure to instruct the jury on how to use the evidence of that extraneous offense;

j.	the misconduct of the prosecutor in "offering evidence or implying through questioning" of ___________ that defendant had been violent with his wife in the past;

k.	the misconduct of the prosecutor in bringing up the irrelevant, overly prejudicial extraneous offense matter by insinuating defendant had been violent with his wife in the past and/or he would be violent with his wife in the future;

k.	the failure of the state to give requested pretrial notice that defendant had been violent with his wife in the past, though such notice was a predicate to potential admissibility of that evidence under TER 404(b);

m.	the misconduct of the prosecutor in seeking the jury to protect defendant's wife from defendant's future violence against her;

n.	by a Daubert/Kelly hearing, that the first police officer was unqualified to express an opinion that Rick Perez' injury was "serious bodily injury";

o.	by an objection or suppression hearing under Texas Evidence Rule Article 1 and 7 the witness' qualifications to so testify, before the state's first police officer testified that Rick Perez' injury was "serious bodily injury", though the witness was neither a medical doctor nor "eye" specialist and there is no showing that the witness was testifying based upon any statutory definition of "serious bodily injury contained in Texas Penal Code § 1.07(a)(46);

p.	by an objection or suppression hearing under Texas Evidence Rule Article 1 and 7 as to any qualifications to so testify, before the state's alleged victim Rick Perez repeated alleged hearsay stated to him outside defendant's presence by a medical doctor;

q.	the failure of one or more investigating police officer to document arrested defendant's PD material exculpatory or mitigating statement to the effect that he struck in self-defense;

r.	the failure of one or more investigating police officer to document ______'s prompt PD material exculpatory or mitigating statement to the effect that ________ struck in self-defense;

s.	the prosecutor's improper inquiry about during examination and commenting during jury argument on __________'s remaining silent after arrest as authorized by the Texas Constitution and not then stating that he had struck Rick Perez in self-defense;

t.	the fact that ___________ was only guilty, if at all, of the misdemeanor offense of Class A Assault;

u.	the fact that Kleberg County Probation Officer Michelle James had not personal knowledge from which to testify that ________ ever viciously assaulted anyone in Kleberg County; 

v.	the failure of state's first witness police officer Rodriguez to inform defense counsel at any time that after defendant's arrest, Rodriguez received inside the PD defendant's oral material exculpatory or mitigating statement to the effect that defendant struck in self-defense;

w.	the failure of state's first witness police officer Rodriguez to document at any time before trial that after defendant's arrest, Rodriguez received inside the PD defendant's oral material exculpatory or mitigating statement to the effect that defendant struck in self-defense;

x.	the failure of state's first witness police officer Rodriguez to inform the prosecutors at any time before conviction that after defendant's arrest, Rodriguez asked if Rick Perez had done anything to __________, and _________ in effect answered inside the PD and gave an oral material exculpatory or mitigating statement to the effect that Rick tried to choke him so defendant hit Rick before Rick's hands connected with defendant's throat;

y.	prior violent acts of Rick Perez, of which defendant was aware at the time he hit Rick Perez in the face at the time and place in question in this prosecution;

z.	the impropriety of any Kleberg County probation officer testifying to a Cameron County jury to the effect that defendant should not be given probation and/or that defendant had not yet learned or was incapable of learning his lesson.

9.	Defense counsel failed to discuss with defendant the pros and cons of requesting the court to submit to the jury the issue of whether or not if guilty at all, defendant was only guilty of the misdemeanor Class A offense of assault on the victim alleged in the indictment in this cause. 
10.	Defense counsel failed to let defendant decide if defense should request the court to submit to the jury the issue of whether or not if guilty at all, defendant was only guilty of the misdemeanor Class A offense of assault on the victim alleged in the indictment in this cause. 
11.	Although the defense counsel did some fact and law investigation and discovered some of this case's facts, law, and potential witnesses, new evidence of which the defendant and defense counsel had no previous notice has come to light, since the trial herein ended.  That new evidence is that:

	a)	the State of Texas knowingly introduced "false light" testimony in its effort to convict of the offense charged herein;

	b)	the State of Texas knowingly attacked defendant's character with "false light" testimony in its effort to convict of the offense charged herein;

	c)	the State of Texas acting through its investigating police department's employee(s) of the City of Los Fresnos improperly withheld material evidence that was exculpatory, impeaching, or mitigating in nature which if defense counsel had known of the existence of such evidence, defense counsel would have inquired of such evidence during the jury trial of this cause.
12.	Contrary to State's duties to see justice be done, the prosecutor(s):
a.	tried to present an irrelevant 911 incident when ___________ called 911 many weeks before the crime alleged herein;
b.	tried to present evidence that defendant was generally a violent person from whom the jury needed to protect society, defendant's wife and others.
c.	cross-examined defendant about post-arrest silence in violation of the rule in Sanchez v. State, 707 S.W.2d 575 (Tex.Cr.App. 1986);
d.	withheld from defense material exculpatory, impeaching and mitigating evidence, the State's proper timely disclosure thereof to defense and proper defense trial use thereof, would in all reasonable probability have resulted in a different trial outcome by jury verdict of not guilty as charged by indictment herein.
13.	Since the jury trial concluded, material evidence favorable to the defendant has been discovered in the memory of one or more of the local investigating police department employees;  i.e.,  exculpatory, impeaching or mitigating material information was withheld from the defense by the state's prosecution team. 
14.	Contrary to his duties to defendant, defense trial counsel never adequately investigated the facts in this case by interviewing the following person(s) before cross-examining him/her before the jury:
a.	the state's first testifying police officer;
b.	the state's alleged victim or his wife; and/or
c.	the state's witness, who was a probation officer in Kleberg County, Texas.
15.	Contrary to his duties to defendant, defense trial counsel never:

a.	objected under hearsay and/or U.S. Constitution Amendments XIV and VI's confrontation clause to testimonial statements when the victim repeated what his medical doctor allegedly had told him in violation of defendant's constitutional rights articulated in Crawford v. Washington, 541 U.S. 36 (2004);

b.	objected to the prosecutor's misleading the jury about the defense of self-defense having been thought up sometime after crime;
c.	objected under hearsay and/or U.S. Constitution Amendments XIV and VI's confrontation clause to testimonial statements from a Kleberg County probation officer who had hearsay information but no personal knowledge about defendant committing any crime in Kleberg County in violation of defendant's constitutional rights articulated in Crawford v. Washington, 541 U.S. 36 (2004);

d.	objected to prosecutor's cross-examining defendant about post-arrest silence in violation of the rule in Sanchez v. State, 707 S.W.2d 575 (Tex.Cr.App. 1986); 

e.	objected to prosecutor's cross-examining defendant about not telling police about striking the victim in anticipatory self-defense in violation of the rule in Sanchez v. State, 707 S.W.2d 575 (Tex.Cr.App. 1986) (Texas constitutional rule:  silence at time of arrest may not be used at trial when defendant testifies) or Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (federal constitutional rule:  silence after Miranda warnings at time of arrest may not be used at trial when defendant testifies);

f.	objected to the first police officer's testimony in effect that in his opinion the victim suffered serious bodily injury, when there was not predicate to show what definition the witness was using to define "serious bodily injury" and whether the witness's personal opinion was based on the statutory definition of that phrase under Texas Penal Code § 1.07(a)(46);

g.	requested the court to hold an Daubert/Kelly hearing under Texas Evidence Rules Article 7 to see if the state's first testifying police officer was qualified to express an opinion as to whether or not the victim herein had sustained a serious bodily injury;

h.	cross-examined the state's first testifying police officer to demonstrate that he was not qualified to express an opinion as to whether or not the victim herein had sustained a serious bodily injury under the statutory definition in Texas Penal Code § 1.07(a)(46);

i.	requested the court to order the jury to disregard the prosecutor's prejudicial question(s) and/or statement(s) about ____________'s 911 call on an irrelevant but earlier occasion to the alleged crime in question;

J.	nothing in the Texas Evidence Rules (TER) precludes a court from taking notice under TER 103(d) of fundamental errors affecting substantial rights although they were not brought to the attention of the court;

j.	preserved defendant's right to complain on appeal about the above matters by preserving each of those issues by making timely, specific objections to the trial court's failure to rule or by obtaining a ruling upon a timely specific objection as required by TRAP 33, TER 102 and Ethington v. State, 819 S.W.2d 854, 858 (Tex.Cr.App. 1991).  State v. Kelley, 20 S.W.3d 147 (Tex.App.-Texarkana 2001, no pet.).

16.	The district court should be of the opinion that the defendant has not received a fair and impartial trial due to the false trial testimony and misconduct of the prosecuting team.
17.	Such new trial is required in the interests of justice.
18.	The judgment of conviction and sentence are the result of the defendant being deprived of United States Constitutional due process of law in that the jury's verdict resulted from perjured testimony presented by the State of Texas.
19.	The State's prosecuting team withheld from trial defense counsel the opportunity to see and utilize exculpatory, impeaching or mitigating Brady material, and if said material had been presented to the trial jury as direct, circumstantial or impeaching evidence, there is a "reasonable probability" that a different result would have resulted; and that means "that the suppression of the evidence 'undermined confidence in the outcome of the trial'", regardless of the good or bad faith of the prosecutor and even if the police, the Texas CPS investigator or the State's scientific expert had failed to disclose that evidence to that prosecutor or any one in the prosecutor's office.  See Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) [reversal is required if after considering the suppressed evidence collectively, the court finds there is a reasonable probability that a different result would have obtained but for that suppression of the evidence which undermined confidence in the outcome of the trial, for there is no need for harmless error review because the test is the same]; U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) [impeaching evidence is favorable to the accused under Brady v. Maryland, 373 U.S. 83 (1963); however, the failure to disclose impeaching evidence on request constitutes constitutional error only if it deprives defendant of a fair trial, i.e., the suppression undermines confidence in the outcome]; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) [exculpatory evidence].
20.	Defense trial counsel's performance was deficient and fell below an objective standard of reasonableness, in that counsel made such serious errors by acts and omissions that he was not functioning effectively as counsel, in the following matters, for he failed to:
a.	perform his duty to make an independent complete investigation of the facts of defendant's case and to prepare for trial;
b.	have a firm command of the facts of the case;
c.	have a firm working command of the applicable rules of criminal procedure;
d.	have a firm working command of the applicable rules of evidence;
e.	have a firm command of the governing substantive law applicable to the case; 
f.	perform his duty to seek out and interview potential witnesses, namely the investigating and arresting officer(s) or other witnesses; and
g.	investigate adequately but instead he relied exclusively upon either the prosecution's representations of the facts or the veracity of the defendant's version of the facts.
h.	request that the court suppress all evidence concerning any allegation(s) of extraneous offenses committed by defendant upon any person;
i.	perform his duty to seek out and interview all potential witnesses; and
j.	perform his duty to adequately interview all potential witnesses.
21.	A new trial's grant is in the interest of justice, State v. Gonzalez, 855 S.W.2d 692, 693 (Tex.Cr.App. 1993); Mullins v. State, 37 Tex. 337, 339-340 (1872
22.	Defense trial counsel's performance was deficient and fell below an objective standard of reasonableness, in that counsel made such serious errors by acts and omissions that he was not functioning effectively as counsel, in the following matters:  each of those reflected herein and by the unsworn statement and affidavits attached to this motion.
23.	This defendant was denied counsel guaranteed by the constitutions of Texas and the United States, Reyes v. State, 849 S.W.2d 812, 816 (Tex.Cr.App. 1993) [Campbell and Meyers, JJ., concurring in the result only believing that ineffective assistance of counsel is a specific ground for a new trial pursuant to Tex.R.App.P. 30(b)(1), i.e., the appellant "has been denied counsel"].
24.	This defendant was denied effective assistance of counsel guaranteed by the constitutions of Texas and the United States, Reyes v. State, 849 S.W.2d 812, 816 (Tex.Cr.App. 1993).
25.	By acts and omissions, defendant's trial counsel rendered ineffective assistance of counsel in violation of defendant's rights guaranteed under the Sixth and Fourteenth Amendments to the U.S. Constitution.
26.	A new trial's grant is in the interest of justice, State v. Gonzalez, 855 S.W.2d 692, 693 (Tex.Cr.App. 1993); Mullins v. State, 37 Tex. 337, 339-340 (1872-73).
27.	Since this entire State criminal trial is an action of the State within the meaning of the Fourteenth Amendment, this defendant was denied equal justice by the State's conduct herein of the criminal trial, which itself implicates the State in this defendant's convictions and sentences after bench trials, for as "a defendant without counsel," a serious risk of injustice infects the trial itself and it is the State unconstitutionally depriving this defendant of his liberty, Cuyler v. Sullivan, 446 U.S. 335, 343-345, 100 S.Ct. 1708, 1715-1717, 64 L.Ed.2d 333 (1980).		

1.	A complaint of ineffective assistance of counsel may be raised in a motion for new trial.  Reyes v. State, 849 S.W.2d 812, 815 (Tex.Cr.App. 1993).
2.	Where from the totality of defense counsel's representation, the defendant sustained his burden to show by a preponderance of the evidence at the hearing on the motion for new trial that he was not accorded the effective assistance of counsel, the trial court abused its discretion in denying the motion for new trial.  Diaz v. State, 905 S.W.2d 302, 307-309 (Tex.App.))Corpus Christi 1995, no pet.).	
3.	Where the defense counsel failed to request an instruction on the law of accomplice witness testimony constitutes ineffective assistance according to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  Ex parte Coronado, 819 S.W.2d 874, 877 (Tex.Cr.App. 1991).
4.	In Sullivan v. Louisiana, 113 S.Ct. 2078, 2080-2081 (1993), the Court said (footnote omitted): 
	The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...."  In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968), we found this right to trial by jury in serious criminal cases to be "fundamental to the American scheme of justice," and therefore applicable in state proceedings.  The right includes, of course, as its most important element, the right to have the jury rather than the judge, reach the requisite finding of "guilty."  See Sparf and Hansen v. United States, 156 U.S. 51, 105-106, 15 S.Ct. 273, 294-295, 39 L.Ed. 343 (1895).  Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.  Ibid.  See also United States v. Martin Linen Supply Co., 430 U.S. 564, 572-573, 97 S.Ct. 1349, 1355-1356, 51 L.Ed.2d 642 (1977); Carpenters v. United States, 330 U.S. 395, 410, 67 S.Ct. 775, 783, 91 L.Ed. 973 (1947).

	What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause.  The prosecution bears the burden of proving all elements of the offense charged, see, e.g., Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977); Leland v. Oregon, 343 U.S. 790, 795, 72 S.Ct. 1002, 1005, 96 L.Ed. 1302 (1952), and must persuade the factfinder "beyond a reasonable doubt" of the facts necessary to establish each of those elements, see, e.g., In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972) (per curiam).  This beyond-a-reasonable-doubt requirement, which was adhered to by virtually all common-law jurisdictions, applies in state as well as federal proceedings.  Winship, supra. 

	It is self-evident, we think, that the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated.  It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine (as Winship requires) whether he is guilty beyond a reasonable doubt.  In other words, the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.  Our per curiam opinion in Cage, which we accept as controlling, held that an instruction of the sort given here does not produce such a verdict.  Petitioner's Sixth Amendment right to jury trial was therefore denied.
5.	The due process clause of U.S. Constitution Amendment XIV requires the state to disclose exculpatory evidence to one accused of a crime.  Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Moore v. Illinois, 408 U.S. 786, 794-795, 92 S.Ct. 2562, 2567-2568, 33 L.Ed.2d 706 (1972); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1568-1569, 131 L.Ed.2d 490 (1995); Cook v. State, 940 S.W.2d 623, 626 (Tex.Cr.App. 1996), cert. denied, 522 U.S. 821, 118 S.Ct. 75, 139 L.Ed.2d 35 (1997). The government has the duty to disclose exculpatory evidence, even in the absence of a request by the defendant, if the withheld evidence, considered as a whole, results in a "reasonable probability" that a different result would have occurred.  The defendant is only required to show that the government's failure to disclose the exculpatory evidence "undermined confidence in the outcome of the trial."  Whether the prosecutor or the police acted in good or bad faith in failing to disclose exculpatory evidence is immaterial.  Kyles v. Whitley, 115 S.Ct. 1568-1569.  In Kyles, the Supreme Court, in effect, held that prosecutor is responsible for material exculpatory information in the possession of the police, and reversal of a criminal conviction for failure to disclose material exculpatory information to the defendant by the police is mandated by Brady, supra, even if the prosecution was not aware of the existence of such information.  In the present case, the new trial court should find that the police possessed several items of material exculpatory information described below or in attached statements but the prosecutor not only failed to disclose them to defendant but presented evidence and/or argument to the jury as to the absence of such evidence being a factor showing defendant's guilt as charged herein. 
6.	Failure to disclose impeachment evidence favorable to the defendant upon request is constitutional error only if the suppression undermines confidence in the outcome of the trial.  U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); see also Thomas v. State, 841 S.W.2d 399, 402 (Tex.Cr.App. 1992).
7.	Among defense counsel's duties is that of making an independent investigation of the facts of his client's case.  Ex parte Ewing, 570 W.S.2d 941, 947 (Tex.Cr.App. 1983).  An attorney must acquaint himself not only with the law but also the facts of a case before he can render reasonably effective assistance of counsel.  Flores v. State, 576 S.W.2d 632 (Tex.Cr.App. 1979) ("That burden may not be sloughed off to an investigator... It is counsel's responsibility.").  Similarly the duty to investigate the facts may not be sloughed off to an associate; however, if counsel does so, he must be held constructively aware of the information his associate learns, for it was his duty to at least learn what the associate had been told by the witness interviewed.  Butler v. State, 716 S.W.2d 48 (Tex.Cr.App. 1986) (court affirmed order by court of appeals reversing appellant's conviction for aggravated robbery because defense counsel's representation fell below an objective standard of reasonableness, and appellant was prejudiced by counsel's failure to acquaint himself with the facts by personably interviewing potential witnesses or by acquainting himself with what his investigator or associate learned while interviewing that witness).   
8.	An attorney must have a firm command of the facts of the case as well as the law before he can render reasonably effective assistance of counsel.  "A natural consequence of this notion is that counsel also has a responsibility to seek out and interview potential witnesses and failure to do so is to be ineffective, if not incompetent, where the result is that any viable defense available to the accused is not advanced."  Ex parte Lilly, 656 S.W.2d 490 (Tex.Cr.App. 1993).  
9.	By failing to investigate potential witnesses, defense counsel insured that no such "reliable adversarial testing process" that Strickland calls for, 104 S.Ct. at 2065, took place at trial.  Butler v. State, 716 S.W.2d 48, 55 (Tex.Cr.App. 1986) (counsel failed to interview Sgt. Williams, but relied instead on the report given him by the prosecutor that Williams could not identify the man he had seen.  "That reliance was misplaced."). 
10.	Defendant does not have the effective assistance of counsel at trial, when because of counsel's failure to investigate and to prepare for trial, he was not in a position to evaluate the State's offer of probation for defendant, whom the jury convicted and sentenced to 20 years' imprisonment.  Ex parte Raborn, 658 S.W.2d 602, 605 (Tex.Cr.App. 1983) ("The State attempted to show counsel discussed the case with the prosecutor, but reliance upon such conversation and discussions for all information is no substitute for an independent investigation of the facts, particularly when there was no effort to examine physical evidence or to talk to the State's witnesses.").
11.	As in this case, the attorney's duty to investigate was at issue in Strickland.  The Supreme Court held that such a duty exists, but its scope may fluctuate under varying circumstances:

... strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than competent investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigations.  In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.  In any ineffectiveness case, a particular decision not to investigate must be directly assessed before reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.  
12.	Trial counsel, while having an affirmative duty to investigate, failed to inquire into the witness's status regarding the offense.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Ex parte Lilly, 656 S.W.2d 490 (Tex.Cr.App. 1993).  The duty to investigate, which runs right up to the time a witness is proffered, would naturally include questioning a witness/co-defendant as to whether he or she had entered a plea to the offense.  Ex parte Hill, 863 S.W.2d 488, 489 (Tex.Cr.App. 1993) (court found that had defense counsel inquired he would have learned his trial alibi witness had recently pursuant to a guilty plea, been convicted of the very offense for which defendant was being prosecuted; and though the plea occurred just days prior to the co-defendant taking the stand or that DA may have intentionally failed to inform counsel of that plea did not relieve trial counsel of this duty).
13.	Federal due process demands that the defense must have an opportunity to investigate and develop a potential defense.  The State's earlier suppression of the early evidence that it was only in self-defense that defendant struck the alleged victim has complicated defendant's opportunity to investigate, develop and adequately present self-defense as a potential defense.  See Cook, supra, 940 S.W.2d at 626; Ex parte Mitchell, 853 S.W.2d 1 (Tex.Cr.App. 1993).  The new trial court should find that it is possible, consistent with the Supreme Court's holding in U.S. v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), to neutralize the taint of the State's prior misconduct while preserving society's interest in prosecution of criminal activity by granting a new trial, so there is no need to grant the new trial and dismiss the prosecution with prejudice and thereby precluding retrial.  Cook, supra, 940 S.W.2d at 626-228.    
14.	The defendant by undersigned counsel also requests the court to order the State's DA and the entire prosecuting office and team, including all law enforcement agencies involved in any way in this case's having gotten to this stage or any future stage, to provide all the above requested information and facts, for the below law is clear and the State attorneys' duty is not to win but to see justice done.  Tex.Cr.P.Code article 2.01.
THE THREE DUE PROCESS DUTIES OF THE PROSECUTOR
	Generally, a prosecutor has three distinct legal obligations under the due process clause of the United States Constitution.  First, the prosecution must disclose all exculpatory evidence in its possession.  See, e.g., Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963).  Second, the prosecution must preserve and make available to the defendant any exculpatory evidence and impeaching evidence which the accused cannot otherwise obtain and which may be material to his defense.  See, e.g., Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984).  Third, a prosecutor has duties to not knowingly solicit false evidence or proffer perjured testimony and to correct any false evidence or perjury of which the prosecutor may become aware of during trial.  See, e.g., Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Alcorta v. Texas, 355 U.S. 28, 31, 78 S.Ct. 103, 105, 2 L.Ed.2d 9 (1957) [due process violated when State, although not soliciting false evidence, allows it to go uncorrected when it appears]; Napue v. Illinois, 360 U.S. 264, 269-270, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) [the State's use of false testimony in securing the conviction taints the conviction, even if the false testimony "goes only to the credibility of the witness.  The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend."  Id., at 269]. 
The Dual Duties About Not Using and Correcting False Evidence Used:
	"[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; ...."  Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) [judgment of conviction reversed, for "our own evaluation of the record here compels us to hold that the false testimony used by the State in securing the conviction of petitioner may have had an effect on the outcome of the trial."  Id., at 301.].
	A prosecutor's presentation to a court or jury of known false testimony is "inconsistent with the rudimentary demands of justice."  Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935).  "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears."  Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).  Due process is violated when a prosecutor fails to correct testimony he knows to be false, Alcorta v. Texas, 355 U.S. 28, 31, 78 S.Ct. 103, 105, 2 L.Ed.2d 9 (1957), even when the falsehood in the testimony goes only to the witness' credibility, Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).  See also Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) [new trial required when government witness testified falsely on matters relating to credibility and the prosecutor who served as trial counsel should have been aware of the falsehood].
	"A new trial is required if 'the false testimony could ... have affected the judgment of the jury.'"  Giglio v. U.S., 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). 		"[R]ecantations of material evidence that would most likely affect the verdict rise to the level of due process violations, if a State, alerted to the recantation, leaves the conviction in place."  Sanders v. Sullivan, 863 F.2d 218, 225 (CA2 1988).
	The Due Process Duty to Disclose Favorable Evidence:  the nature and scope of a prosecutor's ethical duties to disclose or preserve evidence under the Disciplinary Rules differ from the nature and scope of the same duties under the due process clause.  Moreover, the penalties for violations differ dramatically.
1.	In General
	!	The Due Process Clause of the Fourteenth Amendment is violated when a prosecutor fails to disclose evidence that is favorable to the accused which creates a probability sufficient to undermine confidence in the outcome of the proceeding.  See, e.g., Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 1271, 157 L.Ed.2d 1166 (2004); Thomas v. State, 841 S.W.2d 399, 404 (Tex.Cr.App. 1992).
	!	A defendant need not specifically request exculpatory evidence in order to trigger the prosecutor's obligation to disclose it, and a specific request does not alter the test for whether the prosecution has a duty to disclose it.  See, e.g., Thomas, 841 S.W.2d at 403-404 (quoting U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)).
	!	The prosecutor's duty to disclose evidence is on-going.  See Granviel v. State, 552 S.W.2d 107, 119 (Tex.Cr.App. 1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); Flores v. State, 940 S.W.2d 189, 191 (Tex.App.)San Antonio 1996, no pet.).
!	"If it was reasonable for Banks to rely on the prosecution's full disclosure representation, it was also appropriate for Banks to assume that his prosecutor would not stoop to improper litigation conduct to advance prospects for gaining a conviction."  Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 1274, 157 L.Ed.2d 1166 (2004); 
	!	"If it was reasonable for trial counsel to rely on, not just the presumption that the prosecutor would fully perform his duty to disclose all exculpatory materials, but also the implicit representation that such materials would be included in the open files tendered to defense counsel for their examination, we think such reliance by counsel appointed to represent petitioner in state habeas proceedings was equally reasonable."  Strickler v. Greene, 527 U.S. 263, 284, 119 S.Ct. 1936, 144 L.Ed. 286 (1999).
	!	"Moreover, under Brady inadvertent non-disclosure has the same impact on the fairness of the proceedings as deliberate concealment.  `If the suppression of evidence results in constitutional error it is because of the character of the evidence, not the character of the prosecutor."  Strickler v. Greene, 527 U.S. 263, 288-289, 119 S.Ct. 1936, 144 L.Ed. 286 (1999) (citing U.S. v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).
	!	"Courts, litigants, and juries properly anticipate that 'obligations [to refrain from improper methods to secure a conviction] ... plainly rest[ing] upon the prosecuting attorney, will be faithfully observed.' ....  Prosecutors' dishonest conduct or unwarranted concealment should attract no judicial approbation."  Banks v. Dretke, 540 U.S. 668, 696, 124 S.Ct. 1256, 1275, 157 L.Ed.2d 1166 (2004).
2.	The Three Part Test For Failing to Disclose Evidence Favorable to Defense
	!	The following three part test is used to determine when a prosecutor has violated the Due Process Clause by failing to disclose evidence.  See, e.g., Ex parte Mitchell, 853 S.W.2d 1, 4 (Tex.Cr.App. 1993), cert. denied, 114 S.Ct. 183 (1993).
	!	A defendant must prove all three prongs of the test in order to establish a due process violation.  See, e.g., Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed. 286 (1999) [habeas relief denied upon failure to prove third prong]; Lagrone v. State, 942 S.W.2d 602, 615 (Tex.Cr.App. 1997), cert. denied, 118 S.Ct. 305 (1997).  
	!	"Brady, we reiterate, held that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'  373 U.S., at 87, 83 S.Ct. 1194.  We set out in Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed. 286 (1999), the three components or essential elements of a Brady prosecutorial misconduct claim:  'The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'  527 U.S., at 281-282, 119 S.Ct. 1936."  Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 1272, 157 L.Ed.2d 1166 (2004).  In Banks, the State knew of, but kept back, Farr's arrangement with Deputy Sheriff Huff, though Farr was not only material to the State's case, but "of the utmost significance" at both the guilt and punishment phases of Bank's capital trial.  "Farr's status as a paid informant was unquestionably 'relevant'; similarly, beyond doubt, disclosure of Farr's status would have been 'helpful to [Bank's] defense."  Id., 124 S.Ct at 1259.  "At least as to the penalty phase, in sum, one can hardly be confident that Banks received a fair trial, given the jury's ignorance of Farr's true role in the investigation and trial of the case."  Id., 124 S.Ct. at 1259.
	(a)	Has there been a failure to disclose evidence favorable to defense?
		!	The State has a duty to disclose any exculpatory or impeaching evidence favorable to the accused.  
		!	"We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)."  Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed. 286 (1999).
		!	Given the State's open file policy and the State's assertion, on the eve of trial, that it would disclose all Brady material, defense cannot be faulted for relying on that representation.  Banks v. Dretke, 540 U.S. 668, 694, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) ["If it was reasonable for Banks to rely on the prosecution's full disclosure representation, it was also appropriate for Banks to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for gaining a conviction."].
		!	The duty to disclose extends to evidence in the possession of any member of the "prosecution team."  See, e.g., Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995) ["the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"].
		!	The State has an affirmative duty to seek out any favorable, material evidence in the possession of any member of the prosecution team and to deliver it to the defense.  See Kyles, 514 U.S. at 437-438, 115 S.Ct. at 1567-1568. 
!	"[T]he prosecutor is responsible for 'any favorable evidence known to others acting on the government's behalf in the case, including the police.' Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).  Thus, the Commonwealth, through its prosecutor, is charged with knowledge of the Stoltzfus materials for purposes of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)."  Strickler v. Greene, 527 U.S. 263, 275 n. 12, 119 S.Ct. 1936, 144 L.Ed. 286 (1999).
!	There is no "good faith" exception to the duty to disclose, so that a
		!	There is no "good faith" exception to the duty to disclose, so that a prosecutor may not later claim mere negligence or inadvertence in failing to disclose exculpatory evidence.  See Kyles, 514 U.S. at 437-438, 115 S.Ct. at 1567-1568; Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197. 
		!	The State is not required to disclose exculpatory evidence that the prosecution team does not have in its possession and that is not known to exist.  See Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex.Cr.App. 1990), cert. denied, 500 U.S. 948 (1991).
		!	The State is not required to disclose evidence that the State is unaware may benefit the defendant's theory of the case, for the obvious reason that the State is usually not cognizant before trial of what the defense theory may be.  See Ragan v. State, 887 S.W.2d 471, 473 (Tex.App.)San Antonio 1994, pet. ref'd).
		!	The State is not obligated to produce material that is in the public domain or otherwise available to the defendant.  See, e.g., Havard v. State, 800 S.W.2d 195, 204-205 (Tex.Cr.App. 1989) [no duty to disclose where defendant was aware of his own prior statement to police]; Jackson v. State, 552 S.W.2d 798, 803-804 (Tex.Cr.App. 1977); cert. denied, 434 U.S. 1047 (1978) [no duty to disclose where defense counsel had equal access to evidence]; U.S. v. Newman, 849 F.2d 156, 161 (CA5 1988) [government not obligated to produce witness's probation work sheet where document was part of public record].
		!	"[S]trictly speaking, there is never a real `Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."  Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed. 286 (1999).  That is the "prejudice" necessary to satisfy the "materiality" inquiry, for "[s]uch evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'"  U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).  See also Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).  "Moreover, the rule encompasses evidence 'known only to police investigators and not to prosecutors.'  Id. at 438.  In order to comply with Brady, therefore, 'the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police.'  Kyles, 514 U.S. at 437."  Strickler v. Greene, 527 U.S. at 280-281.
	(b)	Is the evidence favorable to the defendant?
		!	The test for favorability is whether the evidence, if disclosed and used effectively by defense counsel, may make the difference between acquittal and conviction or the punishment.  See Mitchell, 853 S.W.2d at 4.
		!	"Favorable evidence" includes both "exculpatory" and "impeachment" evidence.  See Bagley, 473 U.S. at 676, 105 S.Ct. at 3380; Thomas, 841 S.W.2d at 403.
		!	"Exculpatory evidence" is testimony or evidence which "tends to justify, excuse, or clear the defendant from alleged fault or guilt."  See Thomas, 841 S.W.2d at 404.
		!	"Impeachment evidence" is that which is offered "to dispute, disparage, deny, or contradict."  See Thomas, 841 S.W.2d at 404.
(c)	Does the evidence create a probability sufficient to undermine the confidence in the outcome of the proceeding, i.e., was the evidence "material"?
		!	Evidence withheld by a prosecutor is "material" if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.  See Lagrone v. State, 942 S.W.2d 602, 615 (Tex.Cr.App.), cert. denied, 118 S.Ct. 305 (1997) (quoting Ex parte Kimes, 872 S.W.2d 700, 702 (Tex.Cr.App. 1993)).
		!	The standard is that of "a 'reasonable probability' of a different result," so that the issue "is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."  See Kyles, 514 U.S. at 434, 115 S.Ct. at 1566.  A "reasonable probability," then, is a probability "sufficient to undermine confidence in the outcome of the trial."  See id. at 434, 115 S.Ct. at 1566.
		!	The test for materiality is not a test for sufficiency of the evidence.  See Kyles, 514 U.S. at 434-435, 115 S.Ct. at 1566 ["A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict."  Rather, he must simply show "that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict."].
		!	Materiality is determined by examining the alleged error in the context of the entire record and the overall strength of the State's case.  See Lagrone, 942 S.W.2d at 615-616; Thomas, 841 S.W.2d at 404-405.
		!	The suppressed evidence must be considered collectively, not item-by-item.  See Kyles, 514 U.S. at 436, 115 S.Ct. at 1567.
		!	Harmless error analysis is not applicable.
VI.  FACTUAL BASIS	
	The facts relevant to this motion are contained in:
1.	the reporter's record of all occurring in the jury trial;
2.	the reporter's record of each pretrial hearing;
3.	the reporter's record of each hearing without the jury; 
4.	the reporter's record of the hearing on this motion;
5.	the prosecutor's file in this case;
6.	the investigating police department's (PD) file in this case;
7.	the memories of various officials at the investigating PD;
8.	the affidavits of attorney Alejandro Dominguez and defendant's now wife ______ and any other attached affidavits and those to be submitted later; 
9.	______________'s unsworn statement made under penalty of perjury;

	As proof demonstrating this motion's merits, this defendant hereby incorporates herein for all purposes the attached affidavits, exhibits and statements.  

	The appeals court reviews the evidence presented at the hearing in the light most favorable to the trial court's ruling and must determine whether the trial court abused its judicial discretion in granting or overruling a motion for new trial.  State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Cr.App. 1993); State v. Lyons, 812 S.W.2d 336, 341 (Tex.Cr.App. 1991); Jones v. State, 596 S.W.2d 134, 138 (Tex.Cr.App. 1980); Appleman v. State, 531 S.W.2d 806, 810 (Tex.Cr.App. 1975).  "Only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree" will the decision be reversed.  Cantu v. State, 842 S.W.2d 667, 682 (Tex.Cr.App. 1992); State v Gonzalez, 855 S.W.2d 692, 695 n. 4 (Tex.Cr.App. 1993).  Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded in the record.  Romo v. State, 631 S.W.2d 504, 507 (Tex.Cr.App. 1982).

	Since Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed 158 (1932), it has been established that the Sixth Amendment to the Constitution of the United States guarantees an accused "effective assistance" of counsel.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is the authority determining the standards by which to evaluate whether criminal defense counsel's assistance is so ineffective as to require reversal of a judgment of a conviction.  To demonstrate ineffective assistance of counsel, a defendant must show that (1) counsel made errors so serious that he was not functioning at the level guaranteed by the Sixth Amendment to the United States Constitution, and (2) the errors were so serious as to deprive the defendant of a fair trial, a trial whose results is reliable.  Id. at 687, 104 S.Ct. at 2064; Craig v. State, 825 S.W.2d 128, 129 (Tex.Cr.App. 1992).

	Defendant has the burden to prove by a preponderance of the evidence that counsel's representation fell below the standard of prevailing professional norms, and that the outcome of the trial would have been different had defense counsel not fallen below the standard.  Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994).

	The applicable duties of a criminal defense attorney in the position of this case's trial attorney are known to the presiding judge of this court, who was formerly a criminal defense attorney.  The court is requested to take judicial knowledge of the American Bar Association Guidelines for Defense Counsel in Criminal Cases.

	The defendant must show that considering all the circumstances counsel's representation fell below an objective standard of reasonableness under prevailing professional norms.  Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

	The Court of Criminal Appeals of Texas has defined and applied the standards of professional conduct applicable in criminal cases to those the Texas Supreme Court admits to practice in its courts.  Craig v. State, 825 S.W.2d 128, 129 (Tex.Cr.App. 1992).  See Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).  Criminal defense counsel has the duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.  Strickland, 466 U.S. at 688.

	Defendant must show that there is a reasonable probability that, but for defense's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 693-694, 104 S.Ct. at 2068 (1984).  It is probable that, but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial.  Compare Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).  

	Evidence about a particular judge's sentencing practices, should not be considered in the prejudice determination.  See Strickland, 466 U.S. at 695 (1984).

	Cuyler v. Sullivan, 446 U.S. 335, 343-345, 100 S.Ct. 1708, 1715-1717, 64 L.Ed.2d 333 (1980) teaches the following.  There is one standard of effectiveness regardless of whether defense counsel is retained or appointed.  A state criminal trial is an action of the state within the Fourteenth Amendment to the United States Constitution.  When a defendant is without counsel, a serious risk of injustice infects the trial itself.  When a State obtains a criminal conviction through such a trial, it is the state that unconstitutionally deprives the defendant of his liberty.  The state's conduct of a criminal trial itself implicates the State in the defendant's conviction.  Thus, there is no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own attorneys.
XVII.  
	This defendant requests the trial court to take judicial notice of, read and consider all the cases and authorities listened in this motion, its supporting arguments, and the American Bar Association's Standards for Defense Counsel in Criminal Cases.

	Therefore, according to the law applicable to the facts of this case, the trial court should hear the merits of the above motion and grant defendant's motion for new trial in the above referenced cause number.
XIX.  PRAYER
	WHEREFORE, Defendant prays that this Motion be set for a hearing, and after said hearing, appropriate relief be granted.
	
	Respectfully submitted by Defendant's Attorney,

	ORDER
	It is noted by the court that the above Defendant's First Motion for New Trial was presented to the court. 
ORDER SETTING HEARING
	It is ordered by the Court that (1) the above Defendant's First Motion For New Trial is hereby set for hearing before this Court on the            day of               , 2000 at      a.m.; and (2) the Court's Clerk shall promptly notify the parties' counsels.
ORDER
	Came on to be heard the above Defendant's First Motion for New Trial.  It is ordered by the Court that said Defendant's First Motion for New Trial is hereby                        .
	Signed                        , 2006.

DEFENSE BRADY REQUEST WITH ARGUMENT IN SUPPORT
TO CRIMINAL DA AND each assistant prosecutor thereof and the presiding judge also:
	The above defendant by undersigned counsel requests the State timely provide to this defendant at least 7 days before a contested trial herein is scheduled to be called for announcements at 9:00 a.m. on Monday, _______________, 200__, for this cause's contested trial, all information and each possible fact that is exculpatory on whether defendant engaged in any criminal conduct, impeaching of any State witness to be called in any phase of the guilt adjudication or sentencing herein, or mitigating as to potential penalty requisite or degree of felony crime committed.  The DA has constitutional, statutory and ethically obligations to fully and timely comply with the above request, for the below law is clear. 
	The defendant by undersigned counsel also requests the court to order the State's DA and the entire prosecuting office and team, including all law enforcement agencies involved in any way in this case's having gotten to this stage or any future stage, to provide all the above requested information and facts, for the below law is clear and the State attorneys' duty is not to win but to see justice done.  Tex.Cr.P.Code article 2.01.
THE THREE DUE PROCESS DUTIES OF THE PROSECUTOR

	Generally, a prosecutor has three distinct legal obligations under the due process clause of the United States Constitution.  First, the prosecution must disclose all exculpatory evidence in its possession.  See, e.g., Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963).  Second, the prosecution must preserve and make available to the defendant any exculpatory evidence and impeaching evidence which the accused cannot otherwise obtain and which may be material to his defense.  See, e.g., Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984).  Third, a prosecutor has duties to not knowingly solicit false evidence or proffer perjured testimony and to correct any false evidence or perjury of which the prosecutor may become aware of during trial.  See, e.g., Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Alcorta v. Texas, 355 U.S. 28, 31, 78 S.Ct. 103, 105, 2 L.Ed.2d 9 (1957) [due process violated when State, although not soliciting false evidence, allows it to go uncorrected when it appears]; Napue v. Illinois, 360 U.S. 264, 269-270, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) [the State's use of false testimony in securing the conviction taints the conviction, even if the false testimony "goes only to the credibility of the witness.  The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend."  Id., at 269]. 

	[here copy rest of Law on Brady issues from argument inside above motion for new trial]

Engagement Agreement
(Criminal Law Contract)

1.	Date:	January 19, 2006

2.	Parties:

A.	Client:	 __________________
B.	Client’s Alias, if any: _________________________________
C.	Client’s contact information: 
1.	Address:
2.	Telephone numbers:
a.	Home:
b.	Office:
c.	Cell:
d.	Cell:
3.	Relative or friend:
a.	Name:
b.	Address:
c.	Telephone Numbers:
i.	Home:
ii.	Office:
iii.	Cell:
iv.	Cell:
D.	Attorney(s):	The Law Office of Joseph A. Connors, III.

 3.	Players:

A.	__________, a corporation organized under the laws of France (____).

B.	__________, a corporation organized under the laws of Sweden (______)

C.	__________ (_______)

D.	_________  (_______)

 4.	Purpose of Engagement:	

 	A.	To evaluate client’s criminal liability, if any, because of participating with _________ and/or _________ in processing out of the United States an export of computers and nuclear weapons and the financing therefore through the World Bank and/or ______________ and providing certain documentation therefor;

 	B.	To compile documents and anecdotal evidence from client of background and details of the transaction and the relationship between client and ___________ and ___________;

 	C.	Prepare in generic form the above evidence to present to the United States Attorneys and the Federal Bureau of Investigation in a request of immunity or consideration of lighter sentences in case of complaint, indictment and conviction. 

 	D.	This engagement does not include legal services needed to defend client from any criminal complaint, indictment or court appearance, appearance before the grand jury, any court, habeas corpus proceeding, etc.  If Client is indicted or suffers a criminal complaint or indictment filed against Client and Client and Attorney(s) later agree on additional representation, the Parties must execute another Engagement Agreement detailing that representation, payment, etc.

 	E.	This engagement does not include and  Client should seek independent legal advice as to:
 		1.	Business advice.
 		2.	Immigration advice.
 		3.	Tax advice.

5.	Representations by Client:	Client represents to Attorney(s) that:
 
	.			Client is not involved in criminal activities of any kind and that Client earns his money from legitimate business endeavors, including the money paid or to be paid to Attorneys.  

NOTE: 	Attorneys will not accept money that Attorneys may have a reasonable basis to believe that same is a result of criminal activities.  All payments to Attorneys must be by personal check drawn on banks in the State of Texas.

NOTE:	IT IS A FEDERAL FELONY CRIME FOR YOU TO GIVE ME OR FOR ME TO RECEIVE OR SPEND “DIRTY” MONEY DERIVED FROM CERTAIN CONDUCT, SUCH AS THE ILLEGAL SALE OF DRUGS, NARCOTICS OR CONTROLLED SUBSTANCES (marijuana, cocaine, etc.).

	.	Client is providing and will continue to provide Attorney(s)’, true, non-misleading, accurate and  complete  information, not holding back any information.

Note:	If Client fails to disclose information to Attorney(s), Attorney(s) future work may unintentionally place the Client in a “worst” predicament from that which Client presently finds himself as it may be necessary to disclose certain information to authorities and if the information provided to Attorney is false, misleading, inaccurate and/or incomplete that will be the information that Attorney(s) relay to Client’s detriment.

	.	Client authorizes Attorney(s) to represent Client in the matters of this Engagement Agreement.  

	.	Attorneys’ representation is limited to this matter, and that Attorneys are not retained to represent Client generally or in connection with any other matter.  Generally, Attorneys perform  services and take all such action in the described matters as may be appropriate and necessary, in Attorneys’ discretion, to serve as counsel in furtherance of Client’s interests.

	.	Attorneys are being retained by Client to provide legal services. 

	.	Attorney does not guarantee the outcome or results of any action taken.  

	.	Attorney(s)’ representation of Client in this matter ceases at the conclusion of this case.

	.	Attorney(s) will dispose of this file within a reasonable period of time.  Client assigns all rights that Client may have to the file in the Attorney(s)’ office to Attorney(s).  The Attorney is fully authorized to dispose of or destroy the file.

6.	Outside Services: Attorney(s) are authorized to secure the services of outside counsel and public accountants to render opinions and aid in regard to client’s case and the fees charged by them will be added as costs incurred in client’s representation.

7.	NOTICE TO CLIENTS	

	.	The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys.

	.	Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar Office of General Counsel will provide you with information about how to file a complaint.

	.	For more information, please call 1-800-932-1900.  This is a toll free call. 

8.	Fees:	The fees to be charged to Client on an hourly basis are as follows:

	.	Lead Attorney:			Five Hundred and No/100ths Dollars ($500.00)
	.	Associate Attorney:		Three Hundred and No/100ths ($300.00)
	.	Paralegal/Legal Assistant:		One Hundred Fifty and No/100ths Dollars ($150.00). 

Note:	The nature, character and amount of fees charges by this law firm are determined in accordance with Rule 1.04 of the Texas Disciplinary Rules of Professional Conduct as adopted by the Supreme Court of Texas and the State Bar of Texas, a copy of which is attached.  Our fees, retainer and payment policies are based upon:

A.	the time and labor required, the novelty and difficulty of questions involved, and the skill requisite to perform the legal service properly;

B.	the likelihood that the acceptance of the particular employment will preclude other employment by the firm or any of its lawyers;

C.	the fee customarily charged in this locality for similar legal services;

D.	the amount involved and the results obtained;

E.	the time limitations imposed by you or by the circumstances of our agreement;

F.	the nature and length of our professional relationship with you;

G.	the experience, reputation and ability of the lawyer or lawyers performing the services; and

H.	whether the fee is fixed or contingent on results obtained or uncertainty of collection before legal services have been rendered.

9.	Expenses:	In addition to the professional fees charged by this law firm, you will be charged a minimum charge of $275.00 for supplies and expendables.  Further, you will be charged for travel, overnight or special couriers, court reporter and deposition fees and expert witness fees and related fees.  You will be provided an accounting in reference to same.  After thirty (30) days after Attorney(s)’ representation is completed, any requests for copies from the file will incur a charge of a minimum of $25.00 and the costs of copies. 

10.	Retainer:

	.	We will work against retainers monies to be deposited in the Trust Account of Law Office of Joseph A. Connors, III.  The initial retainer we will require is in the amount of Ten Thousand and No/100ths Dollars ($10,000.00) for fees and expenses, which need to be so deposited prior to the commencement of the Law Office ‘s engagement.  This retainer will be kept in an interest bearing trust account, the interest of which inures to the benefit of the Texas Equal Access to Justice Foundation (required by the State Bar of Texas). The amount of fees earned and the expenses incurred will be debited against these retainer funds from time to time at the discretion of the attorney providing the services.  Periodic statements will be issued reflecting charges against the retainer.  If at any time the funds in the retainer become Two Thousand Five Hundred and No/100ths Dollars ($2,500.00) or less, Client will be notified to provide additional sums necessary to again bring the retainer funds to $10,00.00.  Client must deposit the additional retainer funds with The Law Office of Joseph A. Connors, III., on or before five (5) days after notice.  If the additional retainer funds are not timely deposited, same will be a breach of this Engagement and subject to termination by Attorney(s).

	.	Any unused portion of the retainer will be returned to you upon the completion of the services to be rendered for you, or sooner, if the Attorney(s)’ services terminate beforehand.

11.	Default:

A.	Client will be in default and breach of this contract if Client’s representations are untrue or Client fails to, in good faith, cooperate with Attorney(s), or if Client fails to pay Attorney(s)’ fees and/or costs.

B.	Attorney will be in default and breach of this contract if Attorney(s) fail to carry out the Purpose of this Engagement in a good, professional manner as a reasonable and prudent attorney.  

12.	Exclusive Remedies:

A.	Client’s exclusive remedy for Attorney(s)’ default and breach of this contract and/or for Client's claims, damages, costs and/or cause of action against Attorneys for anything arising out of, in connection with or as a result of Attorneys’ acts or omissions in the representation of client, is to receive any portion of the retainer that Attorney(s) have not earned and up to a maximum of Ten Thousand and No/100ths Dollars ($10,000.00) of actual economic damages.  Client is not entitled to receive any compensation for non-economic damages or for any exemplary, incidental and/or consequential damages or recover any costs, including attorney’s fees and/or costs of mediation, arbitration and/or litigation.  It is for the Arbitrators to decide the actual economic damages and the amount of any unearned fees that Attorneys must refund to Client.

B.	Attorney(s)’ exclusive remedy for Client’s default and breach of this contract and/or for claims, damages, costs  and/or cause of action against Client for anything arising out of, in connection with or as a result of Client’s acts or omissions in his responsibilities in this contract, is to recover from  Client  up to a maximum of Ten Thousand and No/100ths Dollars ($10,000.00) of actual economic damages and any unpaid but earned fees and costs incurred on behalf of Client.  Attorney(s) are not entitled to receive any compensation for non-economic damages or for any exemplary, incidental and/or consequential damages or recover any costs, including attorney’s fees and/or costs of mediation, arbitration and/or litigation.  It is for the Arbitrators to decide the actual economic damages and the amount of any earned and unpaid fees and costs incurred for client and unpaid to Attorney(s).
        
13.	Termination:

	.	Client, at all times, upon written notice delivered to Attorney(s), has the right to terminate this Engagement Agreement.  Attorney(s) are entitled to all of earned Attorney(s) fees even upon and after termination, including fees and costs reasonably needed to withdraw.

	.	In addition to any  other circumstances which would require Attorney(s)’ withdrawal from representation of Client, Attorney(s) reserve the right, at Attorney(s)’ option, to terminate (withdraw from representation of Client) this Engagement Agreement if any invoice remains unpaid, the  retainer is not replenished or if Attorney(s) determine in reasonable discretion that to continue services to Client would be unethical, impractical or illegal.

14.	Arbitration:

A.	Any dispute arising under this Engagement Agreement and/or the services rendered to or for Client by The Law Office of Joseph A. Connors, III, and any dispute between the Parties must be first submitted to non-binding mediation and if unresolved, then it must be submitted to binding arbitration in McAllen, Texas,.  Arbitration will be  pursuant to Chapter 171, Texas Civil Practice and Remedies Code together with the following provisions: See Exhibit “A”

B.	The Parties waive trial by jury.

15.	Miscellaneous:

A.	Any  notice required or permitted to be delivered hereunder will be deemed received when personally delivered or three (3) days after sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to a Party at the address set forth above.

B.	This contract DOES NOT inure to the benefit to anyone except the immediate parties hereto. 

C.	THIS CONTRACT WILL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AND ALL OBLIGATIONS OF THE PARTIES CREATED HEREUNDER ARE PERFORMABLE IN HIDALGO COUNTY, TEXAS.

D.	If anyone or more of the provisions contained in this Contract will, for any reason, be held to be invalid, illegal, and unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision hereof, and this Contract will be construed as  if such invalid, illegal or unenforceable provision had never been contained herein.

E.	This contract constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter and cannot be changed except by their written consent.

F.	Time is of the essence in this Contract.

G.	Words of any gender used in this Contract will be held and construed to include any other gender, and words in the singular number will be held to include the plural, and vice versa, unless the context requires otherwise.

H.	This Contract is a negotiated agreement and any documents delivered pursuantly hereto must be interpreted without regard to the identity of the persons who drafted the various provisions.   Every provision of this Contract and such other documents will be construed as though all parties participated equally in their drafting.  Any legal rule of construction that a document is to be construed against the drafting party is not to be applied and is expressly waived by each party hereto.

I.	The remedy provisions of this Contract, wherever found in this contract,  will survive closing.

J.	Survival of Releases, Indemnities, Covenants and Agreements.  Unless otherwise expressly limited herein, all releases, indemnities, covenants and agreements contained in this Agreement, to the extent not fully performed or waived prior to Closing, will survive the Closing indefinitely.

16.	Agreement:	The foregoing accurately summarizes and confirms the Parties understanding of the Parties Agreement and the Parties agree to be bound to same.  Upon signing of this Agreement by both Parties and Client depositing the initial retainer, Client’s representation as hereinabove provided will commence.

17.	Signatures:
	Client:						Attorney(s):
By:                              			The Law Office of Joseph A. Connors, III
							By:                                      
			Joseph A. Connors, III.		

Exhibit “A”

Modifications to Chapter 171, Texas Civil Practice and Remedies Code: 

.	Arbitration shall take place in Hidalgo County, Texas.

.	Within 15 days of being notified in writing that a party chooses to apply the arbitration provision, each party will appoint Arbitrator with not less than 5 years working experience in the area of the dispute and the two appointed Arbitrators will select a third Arbitrator with similar experience.  Failing a good faith effort to locate a person with the desired experienced and acceptable to the nominating party, a nominating party may choose anyone to as an Arbitrator.

.	If an chosen Arbitrator cannot or will not serve, another Arbitrator must be named within 5 days of such written notification.  Failing to name a willing and able Arbitrator will subject nomination by a County or District Court Judge in Hidalgo, Texas.

.	All three Arbitrators must hear the case and decision is by majority vote.

.	Each party must pay all the fees of the Arbitrator selected by that party.  Each party must pay one-half of the fees of the Arbitrator neither selected.

.	Notice by the Arbitrators for a hearing on the matter must be in writing not less than 30 days prior to a hearing.

.	The Texas Rules of Civil Procedure for Discovery together with Subpoena and Subpoena Duces Tecum will apply to the Arbitration and time must be allowed for Interrogatories, Requests for Production, Admissions and Depositions; however, instead of thirty days to response to Discovery only 15 days is allowed from date of actual receipt of the Discovery.

.	Discovery in the dispute must be completed not later than 6 months and the dispute arbitrated to final award not later than 9 months  from the time the 3rd Arbitrator is appointed.  If arbitrators fail to act by the end of said nine month period, the parties will be free to select other arbitrators who must reach their final decision within 90 days of appointment using the same procedure set, if the second set of arbitrators fail to reach a decision within that said 90 day period, then either party may take this matter to a county or district court but the parties waive trial by jury in court.

.	The Arbitrators must follow Texas Law.

Exhibit “B”

The Texas Lawyer*s Creed

	I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.

1.	Our Legal System:	A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

A.	I am passionately proud of my profession. Therefore, “My word is my bond.”
B.	I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.
C.	I commit myself to an adequate and effective pro bono program.
D.	I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
E.	I will always be conscious of my duty to the judicial system. 

2.	Lawyer to Client:	A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client*s legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

A.	I will advise my client of the contents of this Creed when undertaking representation.
B.	I will endeavor to achieve my client*s lawful objectives in legal transactions and in litigation as quickly and economically as possible.
C.	I will be loyal and committed to my client*s lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.
D.	I will advise my client that civility and courtesy are expected and are not a sign of weakness.
E.	I will advise my client of proper and expected behavior.
F.	I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
G.	I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
H.	I will advise my client that we will not pursue tactics which are intended primarily for delay.
I.	I will advise my client that we will not pursue any course of action which is without merit.
J.	I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client*s lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.
K.	I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

3.	Lawyer to Lawyer:	A  lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer*s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

A.	I will be courteous, civil, and prompt in oral and written communications.
B.	I will not quarrel over matters of form or style, but I will concentrate on matters of substance.
C.	I will identify for other counsel or parties all changes I have made in documents submitted for review.
D.	I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.
E.	I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are canceled.
F.	I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
G.	I will not serve motions or pleadings in any maimer that unfairly limits another party*s opportunity to respond.
H.	I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.
I.	I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.
J.	I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.
K.	I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel*s intention to proceed.
L.	I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.
M.	I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
N.	I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
O.	I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
P.	I will refrain from excessive and abusive discovery.
Q.	I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
R.	I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
S.	I will not seek sanctions or disqualification unless it is necessary for protection of my client*s lawful objectives or is fully justified by the circumstances.

4.	Lawyer and Judge:	Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.
	
A.	I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.
B.	I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.
C.	I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.
D.	I will be punctual.
E.	I will not engage in any conduct which offends the dignity and decorum of proceedings.
F.	I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
G.	I will respect the rulings of the Court.
H.	I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
I.	I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

ORDER

	Came on for pretrial hearing of defense's motions in the above cause.  After consideration and hearing parties' arguments and agreements, the court ruled as follows:

Motion for Directed Verdict of Acquittal (filed 11/04/2005)

Motion to Disclose Contents of DA's File is granted on parties' agreement (filed 12/02/05)

Request for Notice of Extraneous Matters at Guilt/Innocence and Punishment and State states it will comply.

Motion for State to Elect which Alleged Offense is Being Prosecuted is hereby __________.

Motion for Reasonable Time to Make Final Arguments is hereby granted.

Motion to Compel the Government to Tender Defense a Copy of all Physical Evidence and State said it has none.

Motion to Grant a Speedy Trial or Dismiss the Cause is granted only as to trial request.

Motion to Suppress and for Judicial Finding Defendant Invoked Rights to Counsel and Remain Silent is set for hearing at ____:___  .m on ______________, 200__.

Motion to Suppress Inadmissible and Irrelevant Hearsay Contextualizing Witness's Actions is hereby ____________________.

Motion for Court to Require State to Make Disclosure under Article 39.14(b), V.A.C.C.P. is resolved with State's stating it has no experts.

Motion to Suppress "Have you Heard Questions" as to Witness's Personal Opinion of Someone's Character is moot, parties agreed.

Eleven Specific Brady Request is hereby _____________, parties agreed.

Motion to Suppress Certain Prosecution Conduct is _____________, parties agreed.

Motion for Individual Voir Dire is hereby ___________________, parties agreed.

Motion to Prohibit State from Attempting to Introduce Written Statements or Reports of State's Witnesses is carried along on parties' agreement.

Motion for Production of Witnesses Statements is granted on parties' agreement that its subparagraph ___, ___ and ___ is inapplicable and State will timely comply with its in-trial duty to provide subparagraph 1(a), 1(b) and as to its subparagraph 1(c) the State will only provide same if the State will not call that witness in its case-in-chief.

Fourth Specific Brady Requests is hereby ______________.

Motion to Suppress Certain Evidence is carried along on parties' agreement.

Motion for Accused's Own Statement:  State states there is none.

Motion for Court reporter to Transcribe Proceedings is granted on parties' agreement.

Motion for Court to Require State to Elect Which Alleged Offense is Being Prosecuted is _________________.

Motion For State's Witnesses' Identification Data is granted on parties' agreement and will be complied with by State providing defense with a copy of State's subpoena list.

Motion for Discovery and Inspection with Memorandum of Authorities is granted on parties' agreement.

Continuous Motion to Require Disclosure of Identity of Informer(s) with Supporting Memorandum is _____________, for State stated there is ____ an informer in this cause.

Motion for Additional Time to Conduct Voir Dire is carried along on parties' agreement.

Motion to Shuffle Jurors is carried along on parties' agreement.

Motion That Bench Conferences Be Held in Jury's Absence is carried along by parties.
Motion for the Production and Inspection of Grand Jury Transcript is moot, since State stated no witnesses appeared at the grand jury.

Motion to Suppress Improper Prosecutorial Conduct ("Is another witness lying?")

Motion For the Court to Rule on Defense Objections  

Motion to Require the Government to Reveal any Agreement with any Prosecution Witness that Could Conceivably Influence Testimony with Supporting Memorandum [Reveal the Deal] is granted and State stated there are ________ but if any deal is reached, State is hereby ordered to so inform defense all the details of said deal.

Motion for Permission to Question Prosecution Witness or Voir Dire Without Jury Present is hereby carried along, parties agreed.

Motion for Court to Daily Instruct Jury Not to Read, Listen or Watch News Accounts Concerning This Case, After Court Has Denied Defendant's Motion to Sequester Jury In This Case is granted on parties' agreement.

Motion to Limit State's Penalty Jury Argument is carried along on parties' agreement.

Motion in Limine Regarding State's Objections is granted on parties' agreement but is applicable to all parties.

Motion for Judicial Limiting First Stage's Jury Argument of State is carried along by parties.

Motion for a Hearing to Test Qualifications of Prosecutor's Character and Reputation Witnesses  is granted on parties' agreement.

Motion for Instructed Verdict is carried along on parties' agreement.

Motion to Sequester Jury is hereby _______________.

Motion to Discover Criminal Records of State's Witness will be done as to ______ and _______ has be complied with as to all other non-law enforcement officers, under the parties' agreement.

Tenth Specific Brady Requests is moot, parties agreed.

Motion to Suppress any T.R.E. 404 Conduct of Defendant is carried along, parties agreed.

Motion to Compel Notice by the Government of the Intention to Use Evidence is granted on parties' agreement.

Motion for Instructed or Directed Verdict of Not Guilty

Motion for Government to Supplemental its File with all Original Files of all Government Agencies involved in this case, and for Court Permission for Defense Counsel to Photocopy all Information in Government's File is carried along on parties' agreement.

Motion for the Court to Rule on Final Argument Objections is hereby ____________________.

First Motion to Suppress is hereby ______________________________________.

Memorandum of Law On Murder's Lesser Included Offenses is withdrawn.

Entry of Appearance is hereby noted.

Motion for Pretrial T.R.E. 614 Material with Supporting Memorandum is granted on parties' agreement.

Motion to Prohibit Certain State Final Argument is granted on parties' agreement as to the first stage of trial.

Motion to Restrict the Scope of the Prosecutor's Final Argument to the Jury is carried along on parties' agreement.

Defendant's Written Objections to Admissibility of Extraneous Offenses, Request For Procedural Determination by Trial Court with Findings of Fact and Conclusions of Law, and for Immediate Limiting Instruction is carried along on parties' agreement.

First Motion for Discovery, Production and Inspection of Evidence is ________.

Motion to Declare Unconstitutional Article 37.07, § 3(a), V.C.C.A.P., is granted on parties' agreement.

Motion for Disclosure of Information to Aid the Accused in Making a Defense with Supporting Memorandum is carried along on parties' agreement.

Motion to Limit Hearsay to Outcry is withdrawn by defense.

Eleven Specific Brady Request is a duplicate and withdraw by defense.

Motion to Suppress Identification is _______________.

Request for Notice of State's Intention to Introduce Evidence of Other Crimes, Wrongs or Acts (Adjudicated or Unadjudicated) in Punishment Pursuant to Article 37.07, V.C.C.A.P. is granted on parties' agreement.

Request for Government's Notice of Rule 404(b), T.R.E., Evidence Reasonably Contemplated by the Prosecution to Be Introduced at Trial is granted on parties' agreement.

Motion For Instruction Limiting Jury's Consideration of Evidence is carried along, by parties' agreement.

Motion in Limine No. One is _______________________________.

Specific Brady Request is granted on parties' agreement that its subparagraph 1 is _____________ and State has complied with its subparagraphs _____ and ______.

Request for a Limiting Instruction Concerning Certain Prosecution Evidence is hereby ________.

Motion to Restrict the Scope of the Prosecutor's Final Argument to the Jury is carried along on parties' agreement.

Motion to Exclude Expert from the Rule is withdrawn, defense said.

Motion for Election as to Punishment is hereby ___________ and any sentence will be assessed by ______________ at defense's timely request.

First Specific Brady Requests is hereby moot, since State stated it has none. 

Motion for Pretrial Evidentiary Hearing to Determine Admissibility of Extraneous Offenses is carried along on parties' agreement.

Motions for Pretrial Hearing and to Suppress under Texas and Federal Laws Accused's Statement etc.

Motion to Suppress Some of State's Rebuttal Evidence is carried along on parties' agreement.

Motion To Suppress Evidence of Defendant's Silence After Miranda Warnings Administered is granted on parties' agreement.

Motion to Suppress and Objections to Opinion on Guilt or Testimonial Truth and Falsity is granted on parties' agreement.

Motion to Suppress Non-Confronted Testimonial Statements after Rule 103(c) Hearing Sans Jury is hereby __________________.

Motion to Suppress Improper Prosecutorial Conduct is moot, parties agreed.

Third Specific Brady Request is inapplicable since as to subparagraph 3, State has none; and defense withdrew subparagraphs 1 and 2.

Request for Reasonable Notice of State's Intent to Introduce in the case in Chief Evidence Described by Tex.Code Crim. P. Art. 38.37, Section 2 is withdrawn, defense said.
Motion to Suppress Evidence is carried along on parties' agreement.

Motion for Discovery of Witness Favorable to Defense is resolved by State saying there are none.

Alternative Motion to Suppress any "Outcry" not Adhering to Article 38.072, V.A.C.C.P., is withdrawn.

Defendant's request for Notice of State's Intention to Introduce Evidence of Other Crimes, Wrongs or Acts (Adjudicated or Unadjudicated) In Punishment Pursuant to Article 37.07, V.A.C.C.P., is alone withdrawn as duplicitous.

Motion to Inspect, Examine and Test Physical Evidence is withdrawn.

Motion to Prohibit Certain State Final Argument is granted on parties' agreement as to the first stage of trial.

Objections to and Motion to Suppress HGN Evidence is withdrawn by defense.

Defense's Motion for Instructions Limiting Jury's Considerations of Evidence is carried along on parties' agreement.

Objections of Judicial Limiting of Cross-Examination is carried along on parties' agreement.

Motion to Inspect, Examine and Test Physical Evidence is moot, for State stated there is none.

Motion for the Court to Rule on Defense Objections is ______________.

Motion for the Production of Evidence Favorable to the Defense is granted but State stated that there is none.

Motion to Declare Unconstitutional Article 37.07 § 3(a), V.A.C.C.P., is ______________.

Motion for Reporter to Type Transcript of Trial Where Probation Granted in This Case is withdrawn.

Memorandum of Law On Murder's Lesser Included Offenses is withdrawn.

Motion for List of State's Witnesses is granted on parties' agreement.

	It is also ordered that it is reasonable for defense to rely on the State's open file policy to contain all Brady material the State is aware of and the prosecutor's representations as to whether or not the State has any Brady material that needs to be disclosed to defense, with the caveat the prosecutor will make available for review by defense counsel the State's entire file of every co-defendant charged with the same crime as this defendant. 

APPROVED AS TO FORM:

____________________________________
Assistant Criminal District Attorney

_____________________
Defense Attorney

JAC III time record on speech and attachments

12/31/05 240 min	write from 1st 50 hits after Lexis Search on "connors w/20 attorney or McAllen or III or A. or Joseph"
01/01/06 270 min	write from hits "51 to 128" after same Lexis Search; add some motions
01/02/06 210 min	add more motions; write from hits "128 to 200" after same Lexis Search
01/03/06 510 min	add motions and speech
01/04/06 120 min	add motions
01/06/06 120 min	add motions; email Derek H.
01/08/06 120 min	revise Derek H's email and discuss with him
01/09/06 210 min	revise speech and Derek H's final emailed speech
01/10/06 090 min	final proof and revise speech; emailed HCBA
01/11/06 150 min	revise contract; phones with atty Ric Ramos; emailed HCBA