The opinion
ACCEPTED
03-14-00578-CR
5127419
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/1/2015 5:22:47 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00578-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE AUSTIN, TEXAS
THIRD SUPREME JUDICIAL DISTRICT OF TEXAS 5/1/2015 5:22:47 PM
AT AUSTIN JEFFREY D. KYLE
Clerk
_________________________________________________________________
NO. CR-13-0651
IN THE 22nd DISTRICT COURT
OF HAYS COUNTY, TEXAS
__________________________________________________________________
DANIEL RAYMOND VADNAIS,
APPELLANT
V.
STATE OF TEXAS,
APPELLEE
_________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
ORAL ARGUMENT REQUESTED
DAL RUGGLES
SBN: 24041834
LAW OFFICE OF DAL R RUGGLES
1103 NUECES ST.
AUSTIN, TEXAS 78701
PH: (512) 477-7991 FAX:(512) 477-3580
DAL@RUGGLESLAW.COM
ATTORNEY FOR APPELLANT
ON APPEAL ONLY
TABLE OF CONTENTS
PAGE
Parties to Trial Court’s Final Judgment…………………………………………. 3
Index of Authorities…….….……………………………………………………. 4
Statement of the Nature of the Case……………………….………...………....... 7
Statement of the Points of Error……………………………………………..….... 9
Statement of Facts………...…………………………………………………….... 10
Summary of the Argument ……………………………………………………... 20
Point of Error Number One.…………….……………………………................. 21
Point of Error Number Two …………………………………………………….. 29
Point of Error Number Three ……………………………………………………..33
Point of Error Number Four …………………………………………………….. 37
Prayer…………………………………………………………….…...…………. 42
Certificate of Service……………………………………………………………. 43
APPELLANT’S BRIEF – Page 2
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
PARTIES TO TRIAL COURT’S FINAL JUDGMENT
In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies that the
following is a complete list of the parties and their counsel:
(a) the State of Texas represented by:
Ms. Kathleen Magee (Ms. Arnold)
State Bar No. 24070201
Mr. John Couch
State Bar No. 24048407
Hays County Criminal District Attorney’s Office
Hays County Government Center
712 South Stagecoach Trail, Suite 2057
San Marcos, Texas 78666
(b) Mr. Daniel Raymond Vadnais, represented by:
Mr. James Gerard McDermott, II – trial attorney
State Bar No. 24041438
Thompson, Salinas, Rickers & McDermott, LLP
8140 North Mopac, Westpark 4, Suite 250
Austin, Texas 78759
Mr. Dal Ruggles – appellate attorney
State Bar No. 24041834
Law Office of Dal R Ruggles
1103 Nueces St.
Austin, Texas 78701
APPELLANT’S BRIEF – Page 3
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
INDEX OF AUTHORITIES
CASES PAGE
Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App. 1972)…..…............................. 30
Barker v. Wingo, 407 U.S. 514, 530 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972)…………………………………………………………………….. 20, 23
Cantu v. State, 253 S.W.3d 273, 280 (Tex.Crim.App. 2008). ………….........22, 23
Caro v. State, 771 S.W.2d 610, 671 (Tex.App. – Dallas 1989, no pet.)……….... 32
Cortez v. State, 428 S.W.3d 338, 342 (Tex.App. – Amarillo 2014)...................... 38
Crank v. State, 761 S.W.2d 328, 341 (Tex.Crim.App. 1988). ……....................... 30
Doggett v. United States, 505 U.S. 647, 658 112 S. Ct. 2686, 120 L. Ed. 2d 520
(1992)................................................................................................................ 27
Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App. 2003). ……..................... 24
Dunklin v. State, 194 S.W.3d 14, 26 (Tex.App.-Tyler 2006, no pet.)…................ 31
Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004)…........................34, 35
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App. 2006)….............34
Gonzales v. State, 2013 Tex.App. LEXIS 10462, 16 (Tex.-App.—San Antonio
2013 aff’d 435 S.W.3d Tex.Crim.App. 2014)……………………….............. 27, 28
Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992) ................................ 23
Hernandez v. State, 2010 Tex.App.LEXIS 851 (Tex.App.-Austin 2010,
APPELLANT’S BRIEF – Page 4
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
no pet.)…………………………………………………………………….. 32, 34
Johnson v. State, 932 S.W.2d 296, 302 (Tex.App.-Austin 1996, pet. ref’d.) ...31, 32
Keller v. State, 818 S.W.2d 425, 428-29 (Tex.App. – Houston [1st Dist] 1991,
pet. ref’d) ............................................................................................................32
Kiser v. State, 893 S.W.2d 277, 281 (Tex.App.-Houston [1st Dist] 1995,
pet. ref’d)……………………………………………………………………... .34
Maynard v. State, 685 S.W.2d 60, 67 (Tex.Crim.App. 1985). .............................. 36
Montgomery v. State, 810 S.W.2d 372, 389-93 (Tex.Crim.App. 1991)
(op. on reh’g) ........................................................................................32, 33, 34
Morrow v. State, 735 S.W.2d 907, 909-12 (Tex.App.-Houston [14th Dist.] 1987,
pet. ref’d) ................................................................................................... 34, 35
Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983) ............................. 26
Robinson v. State, 701 S.W.2d 895, 898 (Tex.Crim.App. 1985) ......................... 35
Shaw v. State, 117 S.W.3d 883, 890 (Tex.Crim.App. 2003)………………...........27
State v. Munoz, 991 S.W.2d 818, 825 (Tex.Crim.App. 1999)………………….... 25
State v. Wei, 447 S.W.3d 549 (Tex.App. – Houston [14th Dist.] 2014 pet.
ref’d)……………………………………………………………………………… 28
Tempin v. State, 711 S.W.2d 30 (Tex.Crim.App. 1986)..……............................... 30
Zamorano v. State, 84 S.W.3d 643, 647 (Tex.Crim.App. 2002)………… 22, 23, 26
APPELLANT’S BRIEF – Page 5
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES PAGE
Sixth Amendment, United States Constitution……………………….….............. 21
Tex. Penal Code Ann. § 32.51(a)….……………………………….…................. 37
Tex. Penal Code Ann. § 32.51(b)(1)….……………………………….…..............36
Tex. Penal Code Ann. § 32.51(c)….……………………………….….................. 41
Tex.R.App.Proc. 38.1(a) ………………………………………………………….. 3
Tex.R.Ev. 403 ……………………………………………………………………..20
Tex.R.Ev. 404(b) ………………………………………………………………… 20
APPELLANT’S BRIEF – Page 6
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW, Daniel Raymond Vadnais, Appellant in this cause, by and
through his Attorney, and files this, his brief on original appeal.
STATEMENT OF THE NATURE OF THE CASE
Appellant was charged by indictment on August 7, 2013 in Cause No. CR-
13-0651 with fraudulent use or possession of identifying information 10 or more
items but less than 50 items. (C.R. 6) State’s Notice of Prior Felony Convictions
for Enhancement of Punishment was filed on April 2, 2014. (C.R. 8)
Jury selection occurred in this case on August 11, 2014. (R.R. III, pp. 5-
129) On August 12, 2014, Appellant entered a plea of not guilty to the charges in
the indictment. (R.R. IV, p. 13). The parties announced ready and proceeded to a
jury trial beginning on August 12, 2014. (R.R. IV, p. 12). On August 13, 2014,
after hearing the evidence and argument of both the State and the defense, the jury
found Appellant guilty of fraudulent possession of identifying information, more
than ten but less than fifty items, as alleged in the indictment. (R.R. V, p. 116; C.R.
84).
Following the guilt-innocence phase of the trial, the trial court assessed
punishment on August 13, 2014. Appellant was sentenced to the Institutional
APPELLANT’S BRIEF – Page 7
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
Division of the Texas Department of Corrections for a period of ten (10) years
confinement. (R.R. V, p. 129; C.R. 85). The Order appointing Dal Ruggles as
Appellant’s counsel was filed on July 10, 2010. (C.R. 90) Notice of Appeal was
filed by Appellant’s trial attorney, James Gerard McDermott, II, on August 28,
2014. (C.R. 88). The trial court signed a Certification of Defendant’s Right to
Appeal on August 13, 2014. (C.R. 87)
APPELLANT’S BRIEF – Page 8
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
STATEMENT OF THE POINTS OF ERROR
POINT OF ERROR NUMBER ONE
THE TRIAL COURT ERRED IN ITS DECISION TO DENY
APPELLANT’S MOTION TO DISMISS FOR VIOLATION OF HIS
SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL.
POINT OF ERROR NUMBER TWO
THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
INTO EVIDENCE AN EXTRANEOUS OFFENSE OF FORGERY.
POINT OF ERROR NUMBER THREE
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A RULE
403 BALANCING TEST WHEN CONSIDERING THE
ADMISSIBILITY OF AN EXTRANEOUS OFFENSE OF FORGERY.
POINT OF ERROR NUMBER FOUR
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
CONVICTION FOR FRAUDULENT USE OR POSSESSION OF
IDENTIFYING INFORMATION 10 OR MORE ITEMS BUT LESS
THAN 50 ITEMS.
APPELLANT’S BRIEF – Page 9
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
STATEMENT OF FACTS
First to testify in Appellant’s case was Deputy Shaun Booth. Deputy Booth
was dispatched to an area in response to a call regarding a verbal disturbance.
When he arrived at the scene he saw two males who were later identified as Mr.
Griffin and the Appellant, Mr. Vadnais. It was early in the morning and Deputy
Booth saw Appellant standing in front of Mr. Griffin’s house in the driveway.
They both appeared fairly calm and when questioned, Appellant said that nothing
had happened. (R.R. IV, pp. 22-26) After backup arrived Deputy Booth was able
to speak with Mr. Griffin. Deputy Booth testified he believed Mr. Griffin and
Appellant had just met. He also said that Appellant had driven there and that he
had a vehicle parked around the corner and a couple of houses down. While
looking around the area Deputy Booth noticed a black bag in a corner of the
garage. He asked Mr. Griffin if the bag was his and he said no. Deputy Booth
then asked Appellant if it was his bag and he said no as well. Eventually however,
Appellant admitted ownership of the bag but only after several attempts by the
Deputy to get him to admit it. It was after Deputy Booth told Appellant the bag
would be taken into inventory as found property that he admitted the bag was his.
Deputy Booth described Appellant’s demeanor as physically nervous, saying he
APPELLANT’S BRIEF – Page 10
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
shuffled, hemmed and hawed about what he’d say, looked at the ground and
wouldn’t look the officer in the eye. He also said that Appellant would not really
give an answer to yes or no questions. He would hem and haw and make a
grunting noise. According to Deputy Booth however, Appellant did eventually
give a definite yes answer regarding consent to search the bag. The bag was
admitted as State’s Exhibit No. 1. (R.R. IV, pp. 26-33, 35)
A separate package containing the contents that were found in State’s
Exhibit No. 1 was also admitted as State’s Exhibit No. 2. Deputy Booth described
the contents of State’s Exhibit No. 1 as being driver’s licenses, copies of various
driver’s licenses, social security cards, copies of social security cards, wallets,
several pieces of identification, legal pads with identifying information, garage
door openers, pen, pencils and “stuff like that.” He also testified as to the names
on the documents in the bag. He read the names seen on several items including
driver’s licenses, social security cards, passports, business cards, checks and
stationary. (R.R. IV, pp. 36-46)
There was also a notebook and notepad found in State’s Exhibit No. 1 that
had names on it along with identifying information such as social security numbers
and addresses. The notebook and notepad were admitted into evidence as State’s
Exhibit No. 3. Deputy Booth read the names in State’s Exhibit No. 3 during his
APPELLANT’S BRIEF – Page 11
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
testimony. Among them were the names of witnesses Clay Snodgrass and Janet
Brown. There was testimony referring to several pieces of paper and receipts
found in State’s Exhibit No. 1 that had Christopher White’s name on them.
Another package containing an additional notebook was admitted into evidence as
State’s Exhibit No. 4. A wallet containing a driver’s license, employee ID, library
card and checks with Christopher White’s name on them was admitted as State’s
Exhibit No. 5. The wallet was found in State’s Exhibit No. 1. There was no
testimony given that associated any of the items in evidence to any of the witnesses
called by the State other than Mr. Snodgrass, Ms. Brown and Mr. White. (R.R. IV,
pp. 50-64)
Upon cross-examination by the defense, Deputy Booth said that when he
arrived on the scene a neighbor told him there was a verbal disturbance and
pointed to Appellant as someone who had been standing in the street yelling, “You
can’t take my car.” Deputy Booth could not recall who Appellant was yelling at
and did not determine who he may have been claiming had taken his car. Mr.
Griffin indicated the argument was between Appellant and Mr. Griffin’s son.
Deputy Booth could not recall getting any information about Mr. Griffin’s son
although upon cross-examination Deputy Booth testified that he learned Appellant
was a friend of Mr. Griffin’s son and that Mr. Griffin had gotten between the two
APPELLANT’S BRIEF – Page 12
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
of them when they had an argument. (R.R.IV, pp. 76-86)
Defense Counsel also questioned Deputy Booth about the bag (State’s
Exhibit No. 1) that was found at the scene. The bag was leaning up against the
garage door track. It was not hidden. Deputy Booth did not see Appellant walk up
to the garage and put something down. He did not see Appellant holding the bag
and Mr. Griffin could not say he saw Appellant hold the bag. When asked if there
was any indication of a fight or evidence that someone had been hit or threatened,
Deputy Booth could not recall. (R.R. IV, pp. 89-90)
Defense counsel questioned Deputy Booth about all the items in State’s
Exhibit No. 3 and he agreed that that there was nothing in it that identified
Appellant. Defense counsel also questioned Deputy Booth about the items
contained in State’s Exhibit No. 4 and States Exhibit No. 5. Again, Deputy Booth
testified that there were no items identifying Appellant. (R.R. IV, pp. 90-105)
Mr. Christopher White took the stand following Deputy Booth. Mr. White
testified that he lived in Schertz, Texas and had lived there for eleven years. He
stated he worked for Walmart as a district manager over loss prevention and went
on to say he lost his wallet at the Walmart on Slaughter Lane in Austin, Texas. He
was doing a review of the store at the time and dropped it in the men’s restroom.
When he realized it was gone he had someone check the restroom but it was not
APPELLANT’S BRIEF – Page 13
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
found so Mr. White called his bank and cancelled the credit card and debit card in
his wallet. (R.R. IV, pp. 114-116)
Mr. White was shown the wallet previously marked as State’s Exhibit No. 5
and asked to identify it. He said it did not look familiar to him however he did
identify a driver’s license that was inside as being the one that he lost and replaced.
He also identified a library card and a Walmart employee card produced by the
State as being his. Checks that were located in the wallet were also not recognized
by Mr. White even though they did have his name on them. Mr. White did not
recognize the bank and account information on the checks either. It was not a bank
he had an account with. Finally, Mr. White was shown some hotel receipts and
asked if he had stayed at those hotels on the dates indicated on the receipts. He
testified he had not. He also testified he did not know Appellant and had not given
him permission to possess his identifying information. (R.R. IV, pp. 118-125)
Mr. Clay Snodgrass also testified he did not know Appellant. He confirmed
his address, date of birth and driver’s license number when asked by the State. He
also confirmed that a number on a document described as part of the package
marked as State’s Exhibit No. 3 was his social security number. He said he did not
give anyone permission or consent to use or possess his personal identifying
information. (R.R. IV, pp. 125-127)
APPELLANT’S BRIEF – Page 14
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
Ms. Janet Brown took the stand and testified to her address, date of birth,
phone number and social security number. She also did not give anyone
permission or consent to have this information. She was followed by Mr. Sonny
Rathmore who provided virtually the identical testimony. (R.R. IV, p. 129-132)
Detective Ronnie Torres was the back-up officer for Deputy Booth and he
testified next. He explained that he responded as a secondary officer in order to
provide assistance for officer safety reasons. When he arrived Deputy Booth was
speaking with Appellant, and according to Detective Torres, not having much
success with him. Deputy Booth was an inexperienced officer at the time so
Detective Torres stepped in to assist. Detective Torres felt Appellant was being
evasive so he decided to be more assertive in order to get his questions answered.
Detective Torres learned that Appellant had driven to the scene and wanted to
continue a conversation with Mr. Griffin. (R.R. IV, pp. 133-145)
Detective Torres remembered seeing Deputy Booth with the black bag in his
hands and that Appellant eventually claimed ownership of the bag. He went on to
say that because he and Deputy Booth did not know what was in the bag and
because there had been a verbal disturbance reported, they would not leave the
scene. At some point Appellant gave the officers consent to search the bag. (R.R.
IV, pp. 146-149)
APPELLANT’S BRIEF – Page 15
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
A redacted version of the officer’s car video was offered into evidence as
State’s Exhibit No. 6 without objection from the defense. The video showed
Detective Torres speaking to Appellant in a very aggressive and rough manner.
Detective Torres explained he took such a tone in order to try and get information
from Appellant. He felt it was necessary because Appellant was being vague in his
responses. He also explained that police officers sometimes lie to suspects in order
to get them to talk. (R.R. IV, pp. 152-155)
On cross-examination Detective Torres answered questions about the call
and described how the investigation was conducted. He confirmed that having an
argument is not a crime but that police officers respond to disturbances to make
sure an argument doesn’t escalate to that point. Because the incident occurred
quite a while back Detective Torres was unable to remember many details. He
could not recall how close Appellant and Mr. Griffin were to each other. He did
not remember details such as the length of the driveway, whether the garage door
was open or closed and if there was a vehicle in the garage. He also could not
recall if Mr. Griffin said that his son had the keys to Appellant’s car or if there was
a dispute about whether or not somebody had taken Appellant’s car. (R.R. IV, pp.
161-163, 175)
APPELLANT’S BRIEF – Page 16
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
Detective Torres said that Appellant was not very cooperative and that he
didn’t believe Appellant was being truthful when giving his name. Appellant
could not produce a driver’s license either. Ultimately, Appellant’s identity was
confirmed and he was free to go, although he was not allowed to drive away since
he did not have a driver’s license. (R.R. IV, pp. 166-170, 181)
Detective Angelo Florian testified that he is a Detective with the Hays
County Sheriff’s Office who is assigned to the Criminal Investigations Division.
Detective Florian provided information regarding his experience in financial
crimes and explained how to determine whether a check or financial instrument is
real or counterfeit. He also discussed the ways to tell if a driver’s license, credit
card or some other sort of identity is real or counterfeit. According to Detective
Florian, social security numbers are probably the easiest things to counterfeit
though they can also be easy to investigate given the fact that until recently, they
were issued regionally throughout the United States. (R.R. V, pp. 12-15)
Detective Florian described Appellant’s case as being very straightforward
and very apparent for identity theft. He had the opportunity to go through the
contents of State’s Exhibit No. 2 and said it contained a lot of documents. Inside
were social security numbers, names, dates of birth, addresses, blank checks with
nothing on them, social security cards, hotel receipts and different tools consistent
APPELLANT’S BRIEF – Page 17
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
with committing fraud and being able to commit fraud. He went on to explain how
counterfeit checks are prepared and how a fraud suspect might try to access a
person’s credit report in order to steal their identity. He also read some of the
notes found in State’s Exhibit 3 and gave his opinion as to what they might mean.
He said that words on the notes like “public data” stood out when investigating
fraud cases because it referred to a website that gave easy access to a person’s
driver license number. (R.R. V, pp. 19-25)
Regarding the hotel receipts found in the bag, Detective Florian testified that
hotels are a great place to be active in fraud. He said they help a person be
anonymous while using the hotel’s Wi-Fi to get on websites like Public Data.
Some of the receipts and email confirmations had Appellant’s name on them that
Detective Florian suggested connected Appellant to the bag and to fraud activities.
Detective Florian felt that other notes found in the bag as well as checks that
appeared to be counterfeit indicated Appellant was engaged in fraud-related
activities. Also, a scanner found in the bag could have been used in making
driver’s licenses or social security cards. (R.R. V, pp. 27-32)
After Detective Florian’s testimony the parties requested a ruling related to
the State’s application for admissibility of other convictions, pursuant to Rule
404(b) of the Texas Rules of Evidence. A hearing was held in the presence of
APPELLANT’S BRIEF – Page 18
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
Appellant and outside the presence of the jury. A total of four convictions were
discussed and defense counsel’s objections to two burglary convictions and one
unauthorized use of a motor vehicle were sustained. Defense counsel’s objection
to a Forgery conviction was sustained in part and overrruled in part. The court
allowed the conviction to come in but only the fact of the conviction and the date.
The court ruled that a limiting instruction would be given to the jury that they
could consider some, part or all of this evidence but that it could not be considered
as character evidence but could only be considered on the issue of intent. In order
to prove the extraneous offense of forgery the State advised they would offer into
evidence the judgment associated with that prior offense. Defense counsel did not
object and in fact, stipulated to the veracity of the judgment. (R.R. V, pp. 51-65)
The State and the defense then rested. (R.R. V, pp. 68-72)
After hearing the argument of counsel from both sides, the jury deliberated
and found the charge as alleged in the indictment to be true. Appellant went to the
court for punishment and after closing statements from both sides the trial court
assessed Appellant’s punishment at ten years imprisonment. (R.R. V, pp. 116-129)
APPELLANT’S BRIEF – Page 19
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
SUMMARY OF THE ARGUMENTS
In his first point of error, Appellant argues that the trial court erred in its
decision to deny Appellant’s motion to dismiss for violation of his Sixth
amendment right to a speedy trial. Appellant argues the delay in his case was
sufficient to trigger a speedy trial inquiry and that when factors under a Barker
analysis were looked at they would weigh in his favor. Barker v. Wingo, 407 U.S.
514, 530 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Appellant’s delay was sufficient
to trigger the analysis, the reason for the delay was not due to Appellant’s
acquiescence but rather the State’s inaction, Appellant asserted his right to a trial
soon after becoming aware of that right and Appellant was prejudiced by the delay.
In his second point of error, Appellant argues that the court abused its
discretion when it allowed an extraneous offense committed by Appellant to be
admitted into evidence. Appellant supports his contention by arguing that the
extraneous offense of forgery allowed into evidence did not meet any of the
exceptions to Tex.R.Ev. 404(b).
In his third point of error, Appellant argues that the court erred when it did
not conduct a Rule 403 balancing test when deciding whether or not to admit the
extraneous offense of forgery. Tex.R.Ev. 403 Appellant argues that the court was
required to do the balancing test and that if it had, it would have found that all four
APPELLANT’S BRIEF – Page 20
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
factors of the test weighed in favor of Appellant. As such, the extraneous offense
of forgery would not have been admissible.
In his fourth point of error, Appellant argues that the evidence produced at
trial was insufficient to show he possessed 10 or more items of identifying
information. Appellant bases this argument on testimony provided by witnesses
and the lack of evidence tying testimony to any documents admitted as evidence.
The record reflects that a total of four items of identifying information were
actually identified and offered into evidence, not the ten or more as alleged in the
indictment.
POINT OF ERROR NUMBER ONE
THE TRIAL COURT ERRED IN ITS DECISION TO DENY
APPELLANT’S MOTION TO DISMISS FOR VIOLATION OF HIS
SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL.
Appellant adopts by reference the Statement of Facts set out earlier in this
brief. At the beginning of trial a hearing was held outside the presence of the jury
on Defendant’s Motion to Dismiss For Violation of Sixth Amendment Right to
Speedy Trial. Defense counsel argued that Appellant had been in custody for more
than 19 months thereby triggering a full analysis of the right to a speedy trial.
Defense counsel explained that even taking into consideration the delay resulting
from agreed resets the total amount of time was somewhere between 16 and 18
APPELLANT’S BRIEF – Page 21
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
months of delay which would still trigger the presumption of denial of speedy trial
thereby placing the burden on the State to justify the delay as far as acquiescence.
(R.R. III, pp. 24-27)
The State argued that the length of time should be measured from the date of
indictment not the date of arrest and as such the delay was less than a year. The
State also argued that they were entitled to a meaningful hearing and as such,
Defendant still had to put on testimony about prejudice, after which the State
would then have to rebut the presumption. The State went on to say that defense
counsel’s motion asking for a dismissal as opposed to a trial weighed against the
defense. The only reason the State gave for the delay was that Defendant had
picked up cases in other counties and had been in custody on those as well. No
additional testimony was given. The court then denied the motion. (R.R. III, pp.
26-27)
“The Sixth Amendment to the United State Constitution guarantees an
accused the right to a speedy trial.” Cantu v. State, 253 S.W.3d 273, 280
(Tex.Crim.App. 2008) (citing Zamorano v. State, 84 S.W.3d 643, 647
(Tex.Crim.App. 2002) (en banc)). When addressing a speedy trial claim the
Supreme Court requires state courts to weigh and balance four factors: 1) length of
delay, 2) reason for delay, 3) assertion of the right, and 4) prejudice to the
APPELLANT’S BRIEF – Page 22
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
accused.” Barker v. Wingo, 407 U.S. 514, 530 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972)
A. Length of Delay
Texas courts generally hold that any delay of eight months or longer is
presumptively unreasonable and triggers speedy trial analysis. Harris v. State, 827
S.W.2d, 949, 956 (Tex.Cr.App. 1992). The length of delay is measured from the
time the defendant is arrested or formally accused. Harris v. State, 827 S.W.2d at
956. Appellant was arrested on November 25, 2012. Appellant was appointed
counsel in March of 2014 and went to trial the following August. Therefore,
approximately 19 months elapsed between Appellant’s arrest and trial. Even
taking into account the period of time attributable to agreed court resets the delay
was over 16 months, a sufficient amount to trigger a speedy trial analysis. The
length of delay weighs against the State and in favor of Appellant.
B. Reason for the Delay
The burden for justifying the delay falls on the State. Cantu v. State, 253
S.W.3d 273, 280 (Tex.Crim.App. 2008). While intentional or deliberate
prosecutorial delay will weigh heavily against the State, neutral reasons, such as
negligence or overcrowded courts, will be less heavily weighed. Zamorano, 84
S.W.3d at 649 (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). When the State
APPELLANT’S BRIEF – Page 23
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
fails to establish a reason for the delay, we may presume neither a deliberate
attempt to prejudice the defense nor that the reason is valid. Dragoo v. State, 96
S.W.3d 308, 314 (Tex.Crim.App. 2003).
According to defense counsel’s argument Appellant was arrested in
November of 2012, granted a PR bond, released to the custody of another county
and bonded out again. All bonds were then revoked in December, less than a
month after his initial arrest. Appellant remained in custody the entire time
thereafter and was not appointed counsel in this case until March of 2014.
Appellant appeared in court with his newly appointed attorney in April of 2014.
At that time Appellant rejected a plea offer made by the State and asked for a trial.
There was an agreed reset to May 22, 2014 and another to June 26, 2014. A
Motion to Dismiss was then filed and Appellant announced for trial.
The State’s reason for the delay consisted of one statement: “If it’s not
apparent enough from the stipulations, defendant had picked up offenses before
this particular case, had a hold on him out of Wilson, or Travis County, whatever it
was, and has been in jail on those cases, as well.” The State’s only explanation for
the delay was that Appellant was being held in other counties. No other testimony
about the reason for delay was given. There is nothing in the record to suggest
Appellant was unavailable for trial. There is nothing in the record to show how far
APPELLANT’S BRIEF – Page 24
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
away Appellant was being held or how difficult it would have been to secure
Appellant’s presence. There was no proof admitted as to when the out-of-county
cases were resolved and the possibility of Appellant to be bench warranted or made
available. This factor should weigh against the State and in favor of Appellant as
well.
C. Assertion of the Right
A defendant is responsible for asserting or demanding his right to a speedy
trial. State v. Munoz, 991 S.W.2d 818, 825 (Tex.Crim.App. 1999). Although
Appellant was arrested in November of 2012 and remained in custody from
December of 2012 on, he was not appointed counsel until March of 2014. Because
Appellant lacked the assistance of counsel during much of that time he was
unaware of his rights and unable to assert them. Appellant’s first opportunity to
assert his right to a speedy trial was at the first court setting with his newly
appointed attorney in April of 2014. The record reflects that on April 22, 2014
Appellant refused a plea offer and asked for a trial. This was Appellant’s first
setting with counsel. On June 26, 2014 he filed a motion to dismiss for violation
of his Sixth amendment right to a speedy trial.
The State argued that Appellant’s claim was weakened because he sought a
dismissal rather than a trial, however this is not necessarily the case. “In some
APPELLANT’S BRIEF – Page 25
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
cases, defense counsel may legitimately feel that a long delay has caused a client
so much prejudice that dismissal is warranted, even if the State is belatedly ready
to move promptly. Each case must turn on its own facts, and the particular relief a
defendant seeks is but one fact to consider”. Phillips v. State, 650 S.W.2d 396,
401 (Tex.Crim.App. 1983). The fact that Appellant’s defense was compromised
by the delay is apparent when reading the record. Detective Torres testified that
because the incident occurred a while back he was unable to remember many
details. He couldn’t recall how close Mr. Griffin and Appellant were to each other.
He couldn’t remember the length of the driveway, whether the garage door was
open or closed and if there was a vehicle in the garage. Deputy Booth also testified
he could not remember some details. He could not recall whom Appellant was
yelling at or who he might have claimed took his car. He couldn’t recall if there
was any indication of a fight or evidence that someone had been hit or threatened.
This factor should weigh against the State and in favor of Appellant.
D. Prejudice to the Accused
As previously stated, Texas courts have generally held that a delay of eight
months or more is “presumptively prejudicial” and will trigger a speedy trial
analysis. Zamorano v. State, 84 S.W.3d 643, 647 (Tex.Crim.App. 2002). Proof of
actual prejudice is not required in situations where the delay is excessive, because
APPELLANT’S BRIEF – Page 26
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
such a delay “presumptively compromises the reliability of a trial in ways that
neither party can prove or even identify.” Shaw v. State, 117 S.W.3d 883, 890
(Tex.Crim.App. 2003) citing Doggett v. United States, 505 U.S. 647, 658 112 S.
Ct. 2686, 120 L. Ed. 2d 520 (1992). A defendant who has made a prima facie
showing of prejudice will be entitled to relief unless the presumption of prejudice
is (1) persuasively rebutted by the State or (2) extenuated by the defendant’s
acquiescence in the delay. Gonzales v. State, 2013 Tex.App. LEXIS 10462, 16
(Tex.-App.—San Antonio 2013 aff’d 435 S.W.3d Tex.Crim.App. 2014) (citing
Doggett, 505 U.S. at 658).
The delay in this case was not extenuated by Appellant’s acquiescence.
During the majority of the time he was in custody Appellant did not know to assert
his right to a speedy trial because he did not have legal representation to advise
him of such. Once he was appointed counsel he requested a trial at the first court
setting and filed a speedy trial motion to dismiss a couple of months thereafter.
Because Appellant did not acquiesce, therefore it is the State’s burden to rebut the
presumption of prejudice.
The State argued that Appellant was not relieved of the burden to show
prejudice. The State argued that they were entitled to a “meaningful hearing” and
as such, Appellant still needed to put on testimony about prejudice. Once
APPELLANT’S BRIEF – Page 27
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
presented, the State would then be required to rebut the presumption. This is not
the law. Appellant does not need to show harm to prevail on a speedy trial claim.
“Nevertheless, the State implies it bore no burden to rebut because appellee made
no allegation of harm in his motion nor put on evidence of actual harm at the
hearing. We disagree.” State v. Wei, 447 S.W.3d 549 (Tex.App. – Houston [14th
Dist.] 2014). Absent a showing that appellee acquiesced in the delay, it was the
State’s burden to rebut the presumption of prejudice because appellee was
“absolved from the requirement to demonstrate prejudice.” State v. Wei, 447
S.W.3d 549 (Tex.App. – Houston [14th Dist.] 2014 pet. ref’d) citing Gonzales v.
State 435 S.W.3d 801, 812, 815 (Tex.Crim.App. 2014). The record shows that the
State made no effort to rebut the presumption of prejudice. This factor weighs
against the State and in favor of Appellant.
Balancing the Barker Factors
All four factors weigh in Appellant’s favor. The 16 to 18 month delay is
presumptively prejudicial going well beyond the 12 month triggering point
recognized by Texas courts. The record is almost silent to the reason for the delay
other than Appellant’s incarceration in other counties during the time. Appellant
asserted his right to a speedy trial shortly after being appointed counsel and
becoming aware of the right. And finally, the State failed to rebut the presumption
APPELLANT’S BRIEF – Page 28
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
that Appellant’s defense had been prejudiced by the delay. This point of error
should be sustained.
POINT OF ERROR NUMBER TWO
THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
INTO EVIDENCE AN EXTRANEOUS OFFENSE OF FORGERY.
During the trial several issues were addressed outside the presence of the
jury. Among them was the State’s desire to have extraneous offenses admitted into
evidence. The State argued that Appellant’s entire defense was that he had no
knowledge of what was in State’s Exhibit No. 1, or absence of mistake. The State
went on to say Appellant’s claim that he did not know what was in the bag could
be disproven by the extraneous offenses he committed. Specifically, the State felt
that a burglary previously committed by Appellant would somehow show that he
knew what was in State’s Exhibit 1, that he knew what he was doing and that there
wasn’t an absence of mistake. Defense counsel’s response was that he had said
nothing during the trial to open the door to admission of the extraneous offenses.
Defense counsel had not asked for a mistake of fact or mistake of law instruction in
the Charge. He maintained that he had not violated any rule that would trigger a
Rule 404(b) exception and allow for the extraneous offense to be admitted into
evidence. (R.R. V, pp. 9- 10)
APPELLANT’S BRIEF – Page 29
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
The Court sustained Appellant’s objection related to two prior convictions
for burglary and one unauthorized use of a motor vehicle conviction. Counsel’s
objection to a forgery conviction was sustained in part and overruled in part. The
court ruled that the conviction would be admitted but it would come in with a
limiting instruction. The jury could consider some, part or all of the evidence, and
the evidence was not to be considered as character evidence under any
circumstances. It could only be considered on the issue of intent. (R.R. V, pp. 51-
54).
A defendant is to be tried only for the offense charged, not for any other
crimes or for being a criminal generally. Crank v. State, 761 S.W.2d 328, 341
(Tex.Crim.App. 1988). Extraneous offense evidence carries with it the inherent
risk that a defendant may be convicted because of his propensity for committing
crimes generally – i.e. his bad character, rather than for the commission of the
charged offense, courts have historically been reluctant to allow evidence of an
individual’s prior bad acts or extraneous offenses. Tempin v. State, 711 S.W.2d 30
(Tex.Crim.App. 1986); Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App. 1972).
For this reason, evidence of extraneous crimes, wrongs, or acts is not admissible at
the guilt-innocence phase to prove the character of a person in order to show action
in conformity therewith but is admissible to prove other matters, such as motive,
APPELLANT’S BRIEF – Page 30
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident if the accused is given reasonable notice of the State’s intent to
introduce the evidence. Tex.R.Ev. 404(b).
Rebuttal of a defensive theory is also one of the permissible purposes for
which relevant evidence may be admitted under Rule 404(b). But to be probative,
the extraneous offense evidence admitted to rebut a defensive theory must be
similar to the charged offense. As stated above, the State’s theory for admissibility
of the extraneous offense evidence was that the extraneous offenses would show
that Appellant did know what was in State’s Exhibit No. 1. No explanation of how
this connection would be made was given by the State.
Although the State’s argument for admitting the extraneous offense into
evidence was rebuttal of a defense, the Court ruled the extraneous offense was
admissible to show intent. Extraneous offense evidence may become admissible to
help prove intent only if the intent required for a conviction is a contested issue in
the case. Dunklin v. State, 194 S.W.3d 14, 26 (Tex.App.-Tyler 2006, no pet.).
Intent can be characterized as a contested issue for purposes of justifying the
admission of extraneous offense evidence if the required intent for the primary
offense cannot be inferred from the act itself or if the accused presents evidence to
rebut the inference that the required intent existed. Johnson v. State, 932 S.W.2d
APPELLANT’S BRIEF – Page 31
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
296, 302 (Tex.App.-Austin 1996, pet. ref’d.) citing Caro v. State, 771 S.W.2d 610,
671 (Tex.App. – Dallas 1989, no pet.). “Intent is most clearly an issue when the
defendant argues the charged offense was unintentional or the result of an
accident.” Johnson v. State, citing Keller v. State, 818 S.W.2d 425, 428-29
(Tex.App. – Houston [1st Dist] 1991, pet ref’d). “Once the defendant claims
accident, mistake, lack of intent, etc., intent can no longer be inferred from other
uncontested direct evidence, and the State is allowed to prove intent through
evidence of other crimes, wrongs, or acts.” Johnson v. State, citing Montgomery v.
State, 810 S.W.2d at 375 (Tex.Crim.App. 1991) (op. on reh’g).
During the trial Appellant did not claim his conduct was unintentional or the
result of an accident or mistake. Appellant’s defensive theory was that the bag
containing the identifying information was not his and that he did not possess it.
As such, the extraneous act was not admissible to show Appellant’s intent.
Compare and contrast Hernandez v. State 2010 Tex.App.LEXIS 851 (Tex.App.-
Austin 2010, no pet.) (where an extraneous act was held to be admissible to show
intent when Hernandez claimed his touching of the complainant was accidental.)
When a defendant’s defensive theory is that the conduct did not occur, an
extraneous act is not admissible to show the defendant’s intent. Here the court
APPELLANT’S BRIEF – Page 32
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
erred in admitting the extraneous offense under Rule 404(b). This point of error
must be sustained.
POINT OF ERROR NUMBER THREE
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A RULE
403 BALANCING TEST WHEN CONSIDERING THE
ADMISSIBILITY OF AN EXTRANEOUS OFFENSE OF FORGERY.
If the trial court overrrules a defendant’s Rule 404(b) objection the trial
court must then examine the evidence in light of Tex.R.Ev. 403. Even when
evidence of prior criminal conduct is admissible under Rule 404(b) the evidence
may still be excluded under Rule 403 if the evidence’s “probative value is
substantially outweighed by the danger of unfair prejudice, confusion or the issues,
or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.” Tex.R.Ev. 403. If a Rule 403 objection is
made, the trial court must conduct a balancing test. Montgomery v. State, 810
S.W.2d 372, 389-90 (Tex.Crim.App. 1991) (op. on reh’g). Here, the record
reflects that the trial court did not conduct a Rule 403 balancing test. If it had, then
relevant criteria regarding probative value versus the danger of unfair prejudice
would have been examined.
The relevant criteria of such a balancing test includes the inherent probative
value of the evidence; the proponent’s need for the evidence; the tendency of the
APPELLANT’S BRIEF – Page 33
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
evidence to induce a decision on an improper basis; the tendency of the evidence to
confuse the jury or distract it from the main issues; the “tendency of the evidence
to be given undue weight by a jury that has not been equipped to evaluate the
probative force of the evidence”; and whether the “presentation of the evidence
will consume an inordinate amount of time or merely repeat evidence already
admitted.” Hernandez v. State, supra at 26, citing Gigliobianco v. State, 210
S.W.3d 637, 641-42 (Tex.Crim.App. 2006); see Erazo v. State, 144 S.W.3d 487,
489 (Tex.Crim.App. 2004). After reviewing the relevant criteria objectively, an
appellate court should conclude that the trial court abused its discretion if the
record reveals that one or more of the criteria demonstrates “a risk that the
probative value of the tendered evidence is substantially outweighed by unfair
prejudice.” Hernandez v. State, supra at 27, citing Montgomery v. State, 810
S.W.2d at 393.
“When determining the probative value of past criminal behavior,
particularly when the intent of the defendant is an issue, courts should consider the
similarity of the prior offense to the current offense charged and the amount of
time that has passed since the prior offense was committed”. Hernandez v. State
citing Kiser v. State, 893 S.W.2d 277, 281 (Tex.App.-Houston [1st Dist] 1995, pet.
ref’d); Morrow v. State, 735 S.W.2d 907, 909-12 (Tex.App.-Houston [14th Dist.]
APPELLANT’S BRIEF – Page 34
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
1987, pet. ref’d). Because the trial court did not conduct a 403 balancing test there
is no information on the record regarding details of Appellant’s past conviction for
forgery. Whether the crime involved similar facts such as the use of identifying
information or whether it involved only the forgery of a signature on a document is
unknown. What is known is that the conviction occurred around twelve years
earlier. State’s Exhibit No 13, the judgment entered into evidence on the forgery
conviction shows the date of the offense to be May 6, 2002. Appellant was placed
on community supervision and subsequently revoked. The date judgment was
entered and sentenced imposed was December 5, 2007. (R.R. VI, pp. 39-41)
Courts have found that evidence was not too remote when the amount of time that
has passed is four to six months Robinson v. State, 701 S.W.2d 895, 898
(Tex.Crim.App. 1985) or seven days Morrow v. State 735 S.W.2d 907, 911
Tex.App. – Houston [14th Dist] 1987, pet. ref’d)). In this case the amount of time
that had passed since the previous crime occurred was approximately 12 years.
The State’s need for the evidence was low. When determining this need,
courts should consider whether the proponent had other evidence to establish the
fact of consequence, how strong the other evidence was, and whether the “fact of
consequence related to an issue that is in dispute”. Erazo v. State, 144 S.W.3d 495,
496 (Tex.Crim.App. 2004). Appellant admitted a bag containing the identifying
APPELLANT’S BRIEF – Page 35
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
information of several persons was his thereby establishing intent. “[T]he actor is
presumed to have the intent to harm or defraud another if the actor possesses the
identifying information of three or more other persons.” Tex.Pen.Code § 32.51
(b)(1).
If there is a reasonable possibility that the inadmissible evidence might have
contributed to either the conviction or the punishment assessed, then the error was
not harmless. Maynard v. State, 685 S.W.2d 60, 67 (Tex.Crim.App. 1985). In this
case the sufficiency of evidence was at issue and the prior conviction may have
provided the additional evidence necessary to convict Appellant. During
punishment the trial court judge referred to Appellant’s prior offenses. “Certainly,
the prior convictions are a factor that weigh against the defendant.” (R.R. VI, p.
128) Additionally, during closing argument the State reminded the jury of
Appellant’s prior conviction for forgery and told them that the judgment could be
used to assess Defendant’s credibility.1 (R.R. V, pp. 114-115) It is not
unreasonable to think that learning of Appellant’s previous conviction for forgery
contributed to his conviction and/or to the amount of punishment he received.
A Rule 403 balancing test in this case would have shown that one or more of
the relevant criteria demonstrate a risk that the admitted extraneous offense
1
This was despite the fact that the court had instructed the jury only to consider the extraneous
offense on the issue of intent.
APPELLANT’S BRIEF – Page 36
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
evidence is outweighed by unfair prejudice. As such, Appellant’s third point of
error should be sustained.
POINT OF ERROR NUMBER FOUR
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
CONVICTION FOR FRAUDULENT USE OR POSSESSION OF
IDENTIFYING INFORMATION 10 OR MORE ITEMS BUT LESS
THAN 50 ITEMS.
Appellant was convicted of fraudulent use or possession of identifying
information 10 or more items but less than 50 items. A person commits the
offense of fraudulent use or possession of identifying information “if the person,
with the intent to harm or defraud another, obtains, possesses, transfers, or uses an
item of identifying information of another person without the other person’s
consent. Tex.Pen.Code. § 32.51(b)(1). “Identifying information” means
information that alone or in conjunction with other information identifies a person,
including a person’s: (A) name and date of birth; (B) unique biometric data,
including the person’s fingerprint, voice print, or retina or iris image; (C) unique
electronic identification number, address, routing code, or financial institution
account number; (D) telecommunication identifying information or access device;
and (E) social security number or other government issued identification number.”
Tex.Pen.Code § 32.51 (a).
APPELLANT’S BRIEF – Page 37
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
While the legislature did not define “item of identifying information,” Texas
courts have determined that an “item” of identifying information is each bit of
identifying information in a document, as opposed to the document on which the
information appears. Cortez v. State, 428 S.W.3d 338, 342 (Tex.App. – Amarillo
2014). If an accused possessed a driver’s license for example, he would be in
possession of 3 items of identifying information as listed in Tex.Pen.Code §
32.51(a). Those 3 items would be the person’s name and date of birth (listed
together as one item in the statute), address, and driver’s license number.
During trial the State produced four witnesses to testify about personal
identifying information that the Appellant may have possessed. The record reflects
that although these witnesses were questioned about several items such as name
and date of birth, address, driver’s license number and social security number, only
four items of identifying information were actually entered as evidence by the
State or identified as an item already in evidence.
Mr. White testified that a wallet previously admitted as State’s Exhibit 5 was
not his but that the driver’s license and employee card inside the wallet were. He
also testified that some checks found inside the wallet were not his but that it was
his name and address on the checks. (R.R. IV, pp. 118-121) As discussed above,
when calculating the number of identifying information items we look to the
APPELLANT’S BRIEF – Page 38
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
individual items themselves, not the documents they are on. Therefore, Mr.
White’s driver’s license number and address would count as one item each. His
name and date of birth combined would also count as one item for a total of three
items. There was no indication that the employee card had anything more than
Mr. White’s signature, which is not an item of identifying information as listed in
Tex.Pen.Code § 32.51 (a).
Mr. Snodgrass testified that an item marked as part of State’s Exhibit 3
contained his social security number. The record does not reflect what that item
was. No other exhibit or item of evidence was referred to during his testimony.
Mr. Snodgrass was questioned about his name, address, driver’s license number
and date of birth but no documents that were found in State’s Exhibit No. 1 were
offered into evidence, admitted into evidence, or referred to during his testimony.
The State failed to connect any other document found in State’s Exhibit No. 1 to
Mr. Snodgrass. As such, the total identifying items in evidence for Mr. Snodgrass
was one.
Like Mr. Snodgrass, Janet Brown was questioned about several items of
personal identifying information. And like Mr. Snodgrass, the only document that
seemed to be referred to by the State was one that had her social security number
on it. Unlike Mr. Snodgrass, nothing Ms. Brown testified about was identified as
APPELLANT’S BRIEF – Page 39
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
evidence with an exhibit number. The record is silent as to what the document
referred to by the State may have been or where it came from. As such, testimony
provided by Mr. Snodgrass and Ms. Brown does not add a single item of
identifying information into evidence.
Finally, Mr. Sonny Rathmore took the stand for the State with similar
results. He was asked what his date of birth was. He was also asked what his
address was, his phone number, and his social security number. As with Ms.
Brown the questions asked seem to indicate the State is referring to a document2
but once again, it is unclear from the record what exhibit the State and the witness
were referring to. It is impossible to know because as there is nothing on the
record to show this. No explanation, identification or authentication is given.
There was no exhibit or document identified on the record by the witness. Nothing
connects these witnesses’ testimony to anything that was found in State’s Exhibit
No. 1, the black bag. Again, this testimony does not add any item of identifying
information into evidence.
2
As with the previous witnesses, the State seems to refer to some document when asking about
the person’s social security number. “And is this your Social Security number right there,
(indicating)? The question is only framed like this when asking about the Social Security
number, not the other items of information, and an explanation beyond the question itself is not
given. The State could have avoided this issue by identifying, numbering and offering the items
as exhibits into evidence.
APPELLANT’S BRIEF – Page 40
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
The trial court seemed aware of the need to have every document necessary
to prove an item of identifying information specifically identified by a witness on
the record. “Make sure you get every piece of property that is in the black bag so
we’ll have a proper record. I mean, it’s your discretion to do that.” (R.R. IV, p.
37) The State did not heed the trial court’s warning and in fact, seemed to make a
point of ignoring it when they advised a witness “without reading this into - - onto
the record, can you tell me, is that your Social Security number right there,
(indicating)?” (R.R. IV, p.129)
The offense of fraudulent use or possession of identifying information is (1)
a state jail felony if the number of items obtained, possessed, transferred, or used is
less than five; (2) a felony of the third degree if the number of items obtained,
possessed, transferred, or used is five or more but less than 10; (3) a felony of the
second degree if the number of items obtained, possessed, transferred, or used is 10
or more but less than 50; (4) a felony of the first degree if the number of items
obtained, possessed, transferred, or used is 50 or more. Tex.Pen.Code § 32.51 (c).
Here, the State had witnesses testify to only four items that were identifiable on the
record. Therefore, State’s evidence is deficient to prove the indictment as charged.
Appellant could only have been convicted of possession or use of less than five
items of identifying information, a State jail felony. Accordingly, Appellant asks
APPELLANT’S BRIEF – Page 41
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
the court to acquit him of the offense charge in the indictment.3 This point of error
should be sustained.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays that this Honorable Court sustain his points of error, reverse the trial court
and remand the case for a new trial.
Respectfully submitted,
/s/ Dal Ruggles
Dal Ruggles
Attorney at Law
1103 Nueces St.
Austin, Texas 78701
Telephone: (512) 477-7991
Facsimile: (512) 477-3580
SBN: 24041834
ATTORNEY FOR APPELLANT
DANIEL RAYMOND VADNAIS
3
Appellant acknowledges that if a court finds the evidence insufficient to sustain a conviction
the appellate court may reform the judgment to find the defendant guilty of a lessor included
offense. If the court deems this the correct remedy, Appellant asserts that this case must be
remanded back to the trial court for a new punishment hearing.
APPELLANT’S BRIEF – Page 42
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellant’s Brief on Original
Appeal was e-served to Ms. Kathleen Magee Arnold of the Hays County District
Attorney’s Office on this the 1st day of May, 2015.
/s/ Dal Ruggles
Dal Ruggles
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief contains 8,644 words, as calculated by the
word count function on my computer.
/s/ Dal Ruggles
Dal Ruggles
APPELLANT’S BRIEF – Page 43
Daniel Raymond Vadnais v. State of Texas
Appeal No. 03-14-00578-CR in the Court of Appeals for the 3rd District of Texas
Trial Court Cause No. CR-13-0651 in the 22nd District Court of Hays County, Texas