# Kennedy, Michael Ray > Court of Appeals of Texas · November 13, 2015 URL: https://www.frixlaw.com/law-library/cases/4071803 ## Case - **Court:** Court of Appeals of Texas - **Decided:** November 13, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4071803 ## Opinion text /Z Z.H- IS Cause Number IN THE COURT OF MGlHAi CRIMINAL APPEALS rn)IDT RECEIVED IN OF TEXAS COURT OF CRIMINAL APPEALS MOV 13 2015 Ab&Acosta, Clerk MICHAEL RAY KENNEDY (Appellant) FILED IN VS. COURT OF CRIMINAL APPEALS The State of TEXAS (Appellee) Abel Acosta, Clerk APPELLANTS PETITION FOR DISCRETIONARY REVIEW Appeal in Cause Number 67.789-E In The 108th District Court of Potter County TEXAS. Michael Ray Kennedy Appearing Pro-Se Stevenson Unit TDCJ 1525 FM 766 Cuero,TEXAS 77954 ORAL ARGUMENT "REQUESTED" TABLE OF CONTENTS Pages STATEMENT OF THE CASE ._2 PROCEDURAL HISTORY ._2 STATEMENT REGAURDING ORAL ARGUMENT .III LIST OF AUTHORITYS .IV.V.VI. QUESTION OF REVIEW': .2,3. QUESTIONS FOR REVIEW NUMBER ONE . 3 Was the court of appeals correct over ruling motion for the rehearing,when there was constutional error,restraints or Interest of justice requireing appellate court to hear new issues on(Due Process) violations. Reasons for Review -i * * * «-? QUESTIONS FOR REVIEW NUMBER TWO ... 5 Was Trial Attorney ineffective for not filing motion to qualify expert and to conduct gatekeeper hearing and failing to file motion for ballistics testing.failing to file motion to suppress evidence. Failure to Investigate. >># 5 QUESTION FOR REVIEW NUMBER THREE 10 Was appeal attorney ineffective for raising only one ground in brief, Failing to allege harm in brief that officer was not qualified to testify as expert.Was appeal attorney ineffective for not raising sufficent evide nce,claim as well as whether circumstantial evidence was legally sufficie nt, to establish guilt and failing to investigate a text message not registered to appellant. ... 10 I. Question for Review four (Continued) -45 Was the Seventh Court of Appeas Correct in Denying both due process and equal protection of law to impeach two witnesses with ^Jdence of prior crime of moral turpitude as permitted by rule 609(a) Tx.R.of evidence Attempting to preserve error in amened motion for new trial. REASON F0 REVIEW IS Question for Review Number Five (5 Was was court of €r±tainalr.Appealsctfi;:err©Endenying:motion to appoin t counsel.Was the court of appeals seventh district Amarillo,Tex„ c as m error dismissing motion for forensic analysis and testing and motion for appointment app of counsel.. Reason for Review «5 PRAYER . 18 CERTIFICATE OF SERVICE APPENDEX AFFIDAVIT OF GLENDA PEMBERTON EXHIBITS REPORTER RECORDS VS OPINION OF COURT MOTION FOR FORENSIC TESTING •__n 156 1 Q. Okay. Are bullets of different calibers 2 generally recognizable? 3 A. Yes. 4 Q. Okay. And from your training and experience, 5 are you able to say what size bullet that is? 6 A. Not able to give a definitive caliber, no, but 7 it is a small caliber handgun -- or small caliber round. 8 Q. Okay. Would that be consistent with a round 9 from a .380? 10 A. Yes, it would. 11 Q. All right. Did you take a statement from the 12 victim, Ms. Monnet? 13 A. Yes, I did. 14 Q. And while you were doing this, did Officer 15 Landrum interview the other 911 caller? 16 A. I believe he did, yes, sir. 17 Q. And did that conclude your involvement with the 18 case? 19 A. Once I was done with the witness and Landrum 20 was done with the other lady, I believe, yes, sir, that 21 was fi ni shed . 22 Q. Actually, I forgot to ask you. Did the 23 Defendant's mother come to the scene of the offense 24 while you were conducting an investigation? 25 A. She -- she showed up to try to get some -- some £*•"•z 1 MR. HORN: We'll pass the witness. 2 CROSS-EXAMINATION 3 BY MR. MARTINEZ: 4 Q. Officer, did you send that slug to any kind of 5 lab for analysis? 6 A. No, I didn't. 7 Q. So what's the significance of the slug in the 8 seat; when did that happen? 9 A. It's -- Ms. Monnet told me that it -- her 10 window was damaged from the subject. And based on the 11 text message that she had received, I figured -- I 12 determined it to be a part of the investigation, a part 13 of the case. 14 Q. Well, did you check out the phone number? 15 A. No, si r, I didn't. 16 Q. Did you get a warrant to find out whose phone 17 number that was? 18 A. No, I didn't. 19 Q. Did you know about Ms. Monnet 's prior criminal 20 history? 21 A. No. 22 Q. Did you know about her criminal history 23 afterwards? 24 A. No. 25 MR. MARTINEZ: Would you put State's SEVENt,^°lSVclERKEAUON VIVIAN lw /-|0 APPEAL FROM THE 108th DISTRICT COURT. Qiij£0[$iJbJ POTTER COUNTY, TEXAS " TRIAL COURT N0.67,789-E HONORABLE DOUGLES WOODBURN,PRESIDING. "MOTION FOR REHEARING" FROM MEMORAL7.UUM APPEALS COURT: MEMORANDUM OPINION JULY 16,2015 T TO THE HONORABLE APPEALS COURT: NOW, COMES MICHAEL RAY KENNEDY APPEARING PRO-SE, FILES THIS MOTION FOR REHEARING:WITHIN 15 days OF THE DATE APPELLANT ' RECEIVED fSS EEEDnflHDBB SKCDTOI? 7nMMFxSK?.0WQQ WAIT ROOM RECEIVED THE MEMORANDUM OPINION FROM THE TDCJ MAIL ROOM* FOR GOOD CAUSE SHOWING THE FOLLOWING: "REQUEST ORAL ARGUMENT" CERTIFICATE OF SERVICE. THIS MOTION FOR REHEARING WAS PLACED IN THE LEGAL MAIL BOX ON - -2015, SEE CAMBEL V. STATE 320 S.W.3d 338, ,344(TEX.CRIM.APP.2010) PRO-SE deemed filed at time delivered to prision authorities. RESPECTFULLY. TO THE HONORABLE JUDGE OF SAID COURT : UNDER TEXAS RULES OF APPELLATE PROCEDURE TRAP 1. SCOPE OF RULES: LOCAL RULES OF APPEALS1.2(c) Parts noncompliance.A court must not dismis an appeal for noncompliance with a local rule witout giving noncomplying party notice and a reasonable opportunity to cure the noncompliance. [APPELLANT ASK THIS COURT TO BE ALLOWED TO CORRECT ANY ERROR IN THIS MOTION THAT MAY ARISE. THANK YOU. - POINT OF ERROR NUMBER ONE. ATTORNEY DONALD F. SCHOFIELD ATTORNEY FOR APPELLANT FILED A GR, OUNDLESS BRIEF SEE TRAP RULE,52.111(a) fileing a petition that is clearly groundless. HOHONORABLE JAMES T. CAMBELL JUSTICE IS EXZACTLE RIGHT OF THE SOLE ISSUE OF APPEAL.PREPAIRED BY MR.SCHOFIELD THE IMPEACHMENT EVIDENCE HE SOUGHT TO INTRODUCE IT WAS INSUFFICIENT TO MEET THE OFFER OF PROOF requirement of rule evidence 103 (3)(2) nothing is preseved for the appe, als court to review Tex. R. APP. P. 33.1. also see the dead bang winner on ineffective appellate counsel see.BOND V. US 1 F.3d 631.(Ca 7, 1993). Failure of appeallant counsel to raise the ineffectiveness issue on dire, ct appeal may be-that, appellate counsel were themselves ineffective. SEE.VELARDE V. UNITED STATES 972 F.2d 826,827 (7th cir 1992) for instance appellate counsel maybe "constitutionally" deficient in, [omitting a dead -bang winner even while,Zealously pressing, other strong (but Unsuccesfull claims). SEE•PAGE V.[P635] UNITED STATES V. 884 F. 2d 800, 302,(7th cir 1989) TrSHAT DEAD BANG WINNER "COULD BE THE ARGUNMENT THAT TRIAL COUNSEL MADE errors so serious that his representation fell out side the wide range of professionally competent, assistance. STRICKLAND,104 S.CT.at 2066,466U.S 690,Ineffectiveness compounded by ineffectiveness in this way would leave motion as the only viable means for a defendant to s£ek relief from the errors of his trial lawyer. Attorney filed no/merit brief constitutes denial of counsel, SEE LOFTION V. WHITLEY,905 F. 2d 885(CA 5 1990)p.887 an accused is const, itutionally entitled to effective assistance of counsel on direct appeal asj^ rigSEE.EViTTS V. LUCEY 469, US 387 105 S.CT 830,83L.ED 2d 821(1985) Clofoji contends that he was constructively denied assistance of counsel ,- ^"on appeal because his atttorney filed a brief which did not assert any arguable error and therefiore prejudce should be presumed • failure of trial attorney to impeach witness held to support "IAC* 5 SEErus. ex rel mc Call V. o grady 908 F.170(ca 171990) -'defense counsel did not represent i;lie defendant to the satisfaction of the sixth amendmant when counsel fails to pursue an impeaching, Cross-Examination or present additional evidence that would in all reasonable probability cast a reasonable doubt on the testimony of the Government main identification witness."Mc 714 F. Supp at 379. not chooseing to impeach vasquez and failing to be broached at trial. It is apparent the convictions of vasquez and monnett carried little or additional impeachment weight TEX.R. EVID 609(a). The one sole issue at appeal was without merrit. And shows appeal attorney did not investigate the facts or law to the case a skilled appeal attorney should;- of known the Law" Motion in limine Whether granted or denied preserves nothing for appellate review. SEE.Griggs V. State 213 S.W.3d 923,926 n.l(Tx.Crim App2007) Facts that appeal attorney has barred for relief, [A] Iff issue could have been raised on direct appeal,relief will not cv: be granted on a habeas application, [exparte Cruzata 220.S.W.3d 518(Tex.Crim App 2007] APPEAL ATTORNEY SHOULD OF RAISED INEFFECTIVE ASSISATNCE IN THE MOTION for new trial SEE REYES V. STATE 849 S.W.2d 812,815 (TX CRIM APP 1993) trial attorney should of impeached the witnesseven though it r§r-. ^\j5) brief on grounds that was objected to and some that-wasent.'both attorenys were ineffective. REQUEST EVIDENTARY HEARING APPELLANT COUNSEL WAS INNEFFECTIVE SEE.SMITH V. ROBBINS, 528 U.S. 259(2000) Note:The reporter records are not attached or exhibits because TDCJ does not provide access to a copy machine.IN the states responce they mention the RR exzist.. PONIT OF ERROR NUMBER TWO, [DUTY TO INVESTIGATE] •- INVESTIGATE ^'H^~^^'~•»'••™-v^^u.r.x•iss,'^.;• the duw1oPi™,MRT?*EH "k S-W^d 713.721,(TEX.CRIM. APP 2006) the »L the SIfrequired aba has S 'S 5afdefense 5een the andP«vaHing norm for appeal atorneys the forty years to thoroughly7 [EXPARTE.nu^loT^I ISS&f&S'iraST- \; KI?i!ila^!-s? a. ^s^t^^iLr eH entry hole.YES once ^removed it(i)got a photo of the bullit Exhibi? 17 Attorney Approches the wittnessTRR 2 1SS1 tn 1 7 n ni £,^niD^t i/- know that this is the same bulli^yoTretriived thatla? 2^1*8? ^ scie*ti£iclviilSSdpGf15rLnBMe2ir^it»OUt *"* obJe«^ to testefie on "ith l^nnP r™"!•-«» r-^s „pn^therlly fammar' and violates Tex RULE 702 the proponent must persuade the trial coSrtbv A?? APP, ?qqfa?e ?eTr hearing-SEE.KELLY 1992 ) alsoHartman V. STATE 824Crim V. State 946 S.W.2d60(tex S.W?2d 568 (TEX CRl£ ' aPP1997) sofiK^Q^X; ^rel1 Dow Pharmaceuticals. Inc. aPPiyy/^ T^rHfes^HvIDE^^ There was no ballistics atomic absorption test conducted violating CHATOM V. WHITE 858 F.2d 1479.SEE Barbee V. Warden Maryland Penitentiary 331 F. 2d 842(1964) The round found as listed in Exhibitl4-15-16-17-18.of a bullit pursuant to artical 11.073 of The Texas Code of Criminal Procedure , Appellant requeats that all available evidence be submitted for scientific testing of the slugg ie. round bullit found.also any material faberic found on the car seat appellant is innocent of firming a weapon the sluggs was already there before all of this occured and the proper test will prove corrosive texture was already there proving the bullit was not fired, on the day the court used the exhibits and the day the bullit was found in a head rest of a car. APPELLANT IS INNOCENT OF FIREING A WEAPON THE SLUGG WAS ALREDY, THERE BEFORE ALL OF THIS OCCURED AND THE PROPER TEST WILL PROVE CORROSIVE TEXTURE SHOWING HOWLONG THIS SLUGG WAS THERE IT REALLY DOES NOT MATTER OF THE SIZE OF CALIBUR AT THIS TIME BECAUSE THE STATE HAS NO WEAPON AND THE APPEALLANT STATED HE HAD NO WEAPON. THE POINT IS HOW LONG WAS THE SLUGG IN THE CAR REST,UNDER 11.073 article applies to any relevent scientific evidence.without this test. IT WOULD "SHOCK THE CONSCIENCE" BEING CONVICTED ON THE BASIS OF, EVIDENCE OBTAINED BY MEANS THAT SHOCKS THE CONSCIENCE... SEE.ROCHIN V. CALIFORNIA,342 U.S 165 (1952). •The bullit was speculation of the calibur but the main factor is the testimony lajm the jury to beleave the bullit was fired when the wind, shield was knocked out of the car the intire testimony was allowed to be given leeding a false impression that a gun was present and it was fired. THE evidence presented was INSUFFICIENT the convistion was obtained result of evidence that is insufficient to persuade a properly instructed, reasonable jury of his guilt beyond a reasonable doubt. SEE.JACKSON V. VIRGINIA 443 US 307 (1997)Appeallant attorney should of filed this point of error because it will prove appellant did not fire no weapon.ie the bullit had to alraedy be there.THIS is false evidence used to convict MILLER V. PATE 386 U.S. 1(1967). under 11.073 AND HOUSE V. BELL 126 S,CT 2064(2006)testing undermines the prosecution theory of the case.Rather biolgical evidence or nitrate gun powder evidence is used to convict it is subject to testing to prove innocence of fir&ing a weapon.just because a slugg was found does not mean the defendant fired the weapon see.MATHEWS V. ELDRIDGE 424 US.319, (1976) 3 , ,. .... TEX CODE CRIM PROC. ANN ART 11.073 stated that reasonable diligence sueeest at least some kind of inquiry has been made into the matter at isiue EX PARTE SLEDGE 391 S.W.3d 791,794,(Tex CRIM APP.2013) The Intention, behind article 11.073 is to create a legal avenue for innocent defendants convicted on based on false and discredited forensic testimony, (citing Exparte Lemke 13 S.w.3d 791,794(tex crim app 2000) according to the aationalinstitute of justice nitrite residue testing or corrosion are not visible testing of this bullit will show it was there for a longer period of time than what the court leed the jury to beleave, and will show deffendant did not fire a weapon, Artical 11.073 offers a vehicle for an appellant to ensure -- insure they received a fair trial as well as a valid conviction SEE EXPARTE GUUTIERREZ 337 S.W.3d 883,893 (Tx Crim. App 2011) Trial counsel and appeallant counsel failed to retain services of fi. forensic expert SEE.SIMS V. LIVESAY 970 F.2d 1575, APPEALLANT PRAYS A HEARING JBE CONDUCTED UNDER THIS MOTION TO TEST BULLIT FOUND IT IS A STRONG P^pACE OF THE EVIDENCE THAT WILL PROVE APPEALLANT Is innocent of fireingv a weapon the bullit is old of nature a test will prove there was bad lawyering and false testimony the witness who tes^ejied a gun was fired would not go in there favor because defendant did not have or fire a weapon. APPPEALLANTS ATTORNEYS ARE INEFFECTIVE FOR FAILING TO TEST THE BULLIT THE OUTCOME OF THE CASE WOULD HAVE BEEN DIFFERENT APPELLANT PRAYS FOR TS TESTING AND RELEIF TO FILE HIS OWN PRO SE BRIEF. THE FAILUR TO BE ALLOWED TO FILE A BRIEF THAT HAS MERIT WOULD DENIE THE RIGHT TO REPRESENT HIMSELF EVEN THOUGH APPEALLANT COUNSEL WAS APPOINTED SEE.FARETTA V. CALIFORNIA 422 U.S.806(1975). OTHER SERIOUS FACTORS ARE IN THE INDEX CAUSE NUMBER67789-E, * NOTICE OF POTENTIAL BRADY MATERIAL PG 44. * SECOND NOTICE OF POTENTIAL BRADY MATERIAL PG,41. * THIRD NOTICE OF POTENTIAL BRADY MATERIAL PG 51. [APPEAL ATTORNEY INVESTIAGTED NONE OF THE BRADY MATERIAL] claims of ineffective assistance of counsel frequently requires, an evidentiary hearing.WHERE there ia a dispute the client and attorney over what occured the trial court is requird to make a credibility determination that can best be made after a live hearing. SEE.Gallego V. United States 174 F.3d 1196(llth Cir.l999)is, particularly instructive on the question of judg^ing credibility when counsel and the client disagree on factual questions. Both attorneys have violated and hindered the right to preserve further appeallant grounds a myriad of other rights, AS justice Sutherland exsplained in Powell V. Alabama 287 U.S.45.53 S.CT 55,77 L.Ed.158 (1932)"right to the effective assistance of counsel •SEE.McMann V. Richardson 397,U.S.759,771,n.l4,90 S.CT 1441,1449,25L.Ed. 2d 763(1970) THE INTEGRITY OF OUR CRIMINAL JUSTICE SYSTEM AND THE FAIRNESS OF THE AND THE FAIRNESS OF THE ADVERSARY CRIMINAL PROCESS IS ASSURED ONLY IF AN ACCUSED IS REPRESENTED BY AN EFFECTIVE ATTORNEY.SEE UNITED STATES V. MORRISON 449,U.S.361,364,101 S,CT.665,667,66L.Ed.2d 564(1981) Absent the effective assistance of counsel "aserious risk of injustice infects the trial itself.'cuyler v. sullivan 446 U.S 335,343 the bullit and brady material is far more Lpfportant than some bad check orrscieml form to impeach some wittnes that has aprior conviction, ^ ALSOTHERE IS PROOF THAT THE RIGHT TO PRESENT A DEFENSE VIOLATING . CHAMBERS V. MISSISSIPPI 410,U.S 284 (1073)the Identification suggestive the attorneys allowed this to violate SEE.NEIL V. BIGGERS 409 U.S.188, (1972) Manson V. Brathwaite 432 U.S 98 (1977) APPELLANT REQUEST THE RIGHT TO HAVE THE BULLIT TESTED TO SEE HOW OLD THE SLUGG WAS. AND THE RIGHT TO FILE A PRO-SE BRIEF . THANEHMQH FOB READING MY ARGUMENT. RESPECTFULLY SUBMITTED, tyUi/^ £*eu^ieJff. 07-14-00353-CR CERTIFICATE 0F COMPLIANCE PURSUANT OF PROPOSED RULE CERTIFIES THAT THIS MOTION ON REHEARING, COMPLIES WITH THE TYPE VOLUME LIMITATIONS OF TEX.R.APP.PROCEDURE9.4(e)(i) EXCLUSIVE THIS MOTION CONTAINS LESS THAN is lass.iiau 2,400 words, and is only seven pages long. certificate of service I HEREBY CERTEFIE THAT THIS HAS BEEN PLACED IN TO THE LEGAL MAIL MOTION FOR REHEARING ONJULY 29.2015.ALSO THE MAIL ROOM SET ON THE MAIL I DID NOT GET THE OPION ON THE 17th of July as the attorney makes it appear respectfully submitted WL £fi k^toA, ENCLOSED IS MOTION FOR REHEARING DEAR CLERK OF APPEALS COURT . I ASK THAT THIS MOTION FOR REHEARING IS FILED IN THE CORRECT COURT, AND THAT I RECEIVE NOTICE OF THE TIME STAMED AND FILED. THANK YOU FOR YOUR ATTENTION IN THIS BATTLE. CORDIALLY. 1/C /Q^^w^. DI E SEVENTH COum OF APPEALS VIVIAN LONG.. CLERK JT APPENDEX STATES BRIEF NO#07-14-00353-CR. EX,(6) PAGES:8, 9, 28 calling 911 because appellant had pulled a gun on the victim. RR2:134-36 Later, Joel heard a loud noise but is not sure what it was. RR2.136, 139-40 Michael Wheeler. Wheeler has been a police officer over two years. RR2.141 He responded to this incident 911 call and was flagged down by the victim. RR2.143 She was visibly upset, crying, shaken, distraught, and afraid. RR2.144 She had a cut below her eye. Id. He was aware the victim and appellant had earlier gotten into a fight. RR2.144, 166 Wheeler took photos of the victim and her vehicle damage. RR2:145-54, 167; §Mm^^MMi^9S^Mm$m%m& m^mimmr6wimmw^mmmm&mw6m§^mm^^^mMmi^i^^^mMm-- Wheeler interviewed the victim and Officer Landrum interviewed the 911 caller. RR2.156, 159, 165 The victim did not appear to be under the influence. RR2.165 On cross-exam, Wheeler stated he did not know about the victim's criminal history. RR2.158 Wheeler testified that knowing her criminal history would not change his assessment of her that day. RR2.172 Alice Monnet The victim's clothes were identified as prison attire. RR2.174 She acknowledged that after the events of this case, she got in trouble and ended up pleading guilty to burglary, robbery, and unauthorized use of a motor 57A7£fr brief- vehicle. RR2.175 The victim further admitted to past troubles she pled guilty to and took responsibility for: misdemeanor theft, credit card abuse, and fraudulent use of ID information back in 2009; and, burglary of a building in 2012. Id. The end of August 2013, the victim briefly became involved with appellant and moved in with him but then decided to go back to her husband. RR2:176-77, 195, 198 Thereafter, the victim and appellant got in a fight and he hurt her eye. RR2:177-78; State's Exhibit:5 On September 8, 2013, she tried to move out and take her car but she could not find her keys. RR2.178 She had to get someone else to pick her up and left her car in an undamaged state. Id. On September 9, 2013, at 2:38 p.m., appellant sent her a text message: "Well, your tire is gashed and your car is shot up. Either come and get it or bring your old man to pick this shit up." RR2:178-80; State's Exhibit:3 The victim decided to go get her car but called the police on the way because *- ^she wanted them to be there while she got her stuff. RR2:180-82; State's Exhibit:1- ..J..U '•' She grew impatient waiting for the police and went ahead and walked over to her car. RR2.182 When she got close, she saw a tire was slashed and all the other tires had the air let out and a window was shot out. RR2.183 Then, the victim saw'" appellant in his truck and they exchanged words and when he got out of his truck, she ran to the other side of her car and saw he had a gun in his hand. RR2:183-84, 197 The_vicjirn had seen appellant's .38 the night of the assault. RR2.184 He % S~7A7tS &ritf. admitted to theft or crimes of moral turpitude and prior convictions. It has been held that any alleged error in precluding a party from presenting evidence of a witness' prior convictions is harmless where the complaining party is allowed to impeach the witness with other prior convictions or crimes. Smith v. State, 850 S.W.2d 275, 279 (Tex.App.—Fort Worth 1993, pet. refd). Whether the complaining party has been able to impeach a witness in this manner is equally as important in balancing probative value against prejudicial effect as it is to whether the alleged error is harmful. Woodall v. State, 77 S.W.3d 388, 397 (Tex.App.— Fort Worth 2002, pet. refd). The State's case was strong even without the complained of prior convictions due to ample evidence of appellant's commission of the crime from 911 and jail calls and appellant's interview, the admission of . incriminating testimony, the .38 bullet, and many photos of the scene and victim. Here, appellant was allowed to impeach the eyewitness with a second-degree felony theft conviction for which she was still on probation. Defendant's Exhibit:! Appellant was further allowed to impeach the victim with six prior convictions and she appeared in her jail jumpsuit since she was incarcerated at the time of the trial proceedings. Defendant's Exhibits:3-8 Defense counsel was allowed to attack the credibility of the witnesses in front of the jury and vigorously defended appellant and cross-examined every witness. The State disagrees the judge abused discretion regarding impeachment of the two witnesses, and further, argues any alleged error 28 APPENDEX (jf) MEMORANDUM OPINION JULY 16th,2015 COURT OF APPEALS,SEVENTH DISTRICT DENING MOTION FOR TESTING COURT OF APEALS OVERRULEING MOTION FOR REHEARING. K^ Court of Appeals s>ebenth JBtetrttt of tKexasf at &martlIo No. 07-14-00353-CR MICHAEL RAY KENNEDY, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 108th District Court Potter County, Texas Trial Court No. 67,789-E, Honorable Douglas Woodbum, Presiding July 16, 2015 MEMORANDUM OPINION Before QUTNN, CJ., and CAMPBELL and PIRTLE, JJ. A jury convicted appellant Michael Ray Kennedy of aggravated assault with a deadly weapon.1 In so doing, it found appellant pointed a gun at Alice Monnet, a person with whom he briefly cohabitated. The jury assessed appellant's punishment at twenty- 1See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). This offense is a second degree felony. Tex. Penal Code Ann. § 12.33 (West 2011). nine years in prison and the trial court imposed sentence accordingly. Punishment was enhanced by two prior felony convictions.2 We will affirm the judgment of the trial court. Background Because appellant does not challenge the sufficiency of the evidence, we will state only those facts necessary for the disposition of the appeal. At the hearing on the State's motion in limine the trial court considered the admissibility of prior convictions to impeach two of the State's witnesses.3 The prosecutor expressed a belief that Monnet had seven convictions admissible for impeachment. The court stated if Monnet testified, her convictions were admissible. Another State's witness, Sally Vasquez, was said by the prosecutor to have one prior felony conviction. He added that Vasquez, "has been previously arrested in the past several times for Misdemeanor Class B theft by check; however, none of those were theft convictions. All of those were actually reduced down to Class C, Issuance of a Bad Check. . . ." Accordingly, the court ordered in limine that the issuance-of-bad-checks convictions could not be mentioned at trial unless their admissibility was first established outside the presence of the jury. The State called Vasquez and Monnet during its case-in-chief on guilt-innocence. Evidence on direct and cross-examination established Vasquez was previously convicted for felony theft. The judgment of conviction, admitted as a defense exhibit, indicated the theft occurred over a three-year period between 2008 and 2011. The 2 See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2014) (specifying under stated conditions enhanced imprisonment range of life or twenty-five to ninety-nine years). 3 See Tex. R. Evid. 609. value of the property Vasquez stole was $100,000 or more but less than $200,000. During trial, appellant's counsel did not ask the court to reconsider its order in limine concerning Vasquez's alleged convictions for "Class C, issuance of a bad check," nor did appellant make an offer of proof supporting these convictions. Monnet was brought to trial as a State's witness wearing jail clothes. She agreed on direct examination that she was "serving [her] time" after pleading guilty to burglary, robbery, and unauthorized use of a motor vehicle. Monnet also agreed to previously pleading guilty to burglary of a building in 2012 and theft, credit card abuse, and fraudulent use of identification information in 2009. Later during direct examination she admitted using drugs on the day of the alleged assault and expressed a belief that she and appellant were "high" at that time. On cross-examination, Monnet admitted using methamphetamine on the day of the assault. She further admitted prior convictions for "unauthorized use of a motor vehicle," "burglary of a habitation," "robbery," "burglary of a building," "forgery by passing," and "fraudulent possession of identifying information." Corresponding judgments were admitted into evidence without objection. Later during Monnet's cross-examination, the following occurred: [Defense Counsel]: Did you also get convicted of carrying a prohibited weapon in- [The Prosecutor]: Objection, Your Honor. May we approach? The Court: Sure. (At bench, on the record) [Defense Counsel]: Judge, this girl has two-this young lady has two more- The Court: Well, we talked about this before this ever started and you said those are the only ones that you had. [Defense Counsel]: Right. And I found out she has two more; possession of prohibited weapon and substance—prohibited weapon convictions in misdemeanor court and County Court at Law. The Court: Okay. I'm not going to allow it. You've already said what you said. I'll instruct the Jury to disregard. (Open court) The Court: Ladies and Gentlemen, you're instructed to disregard that last question. Analysis In his sole issue on appeal, appellant complains the trial court abused its discretion by excluding evidence of Vasquez's alleged convictions for issuing a bad check and Monnet's alleged two additional convictions. Appellant chose not to pursue impeachment of Vasquez with her alleged bad- check convictions. Although raised at the motion in limine hearing, the matter was not broached at trial. A motion in limine, whether granted or denied, preserves nothing for appellate review. Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007) (citing Manns v. State, 122 S.W.3d 171, 190 (Tex.Crim.App. 2003) and G. Dix & R. Dawson, Texas Practice: Criminal Practice and Procedure § 42.152 (2d ed. 2001)). Concerning Monnet's two alleged additional convictions, counsel's statement to the court related some information regarding the impeachment evidence he sought to introduce, but it was insufficient to meet the offer of proof requirement of Rule of APftrrjVl ^ ^ BRIAN QUINN Chiefjustice fflourt of^cpp&ds VIVIAN LONG Clerk JAMES T. CAMPBELL Justice J&ebettf&i district ai W-exns MAILING ADDRESS: MACKEY K. HANCOCK Justice potter (Emmtjr (Eoxaris ^Suilomg P. O. Box 9540 79105-9540 PATRICK A. PIRTLE 501JL ^xUmorz^uite 2-,A Justice JWarilfo, ®exaa 79101-2449 (806) 342-2650 October 21, 2015 Michael Ray Kennedy TDCJ-ID 1968578 Stevenson Unit 1525 FM 766 Cuero, TX 77954 RE: Case Number: 07-14-00353-CR Trial Court Case Number: 67,789-E Style: Michael Ray Kennedy v. The State of Texas Dear Mr. Kennedy: Before the Court is your motion for "forensic analysis and testing" and your motion for appointment of counsel. The Court's opinion and judgment were issued on July 16, 2015. Its plenary power over its judgment expired on September 25, 2015. Your motions do not indicate the date you placed them in the prison mail system. This day, the Court ruled that if your motions were timely placed in the prison mail system, they are denied. See Tex. R. App. P. 9.2(b)(1). If your motions were placed in the prison mail system after the Court's plenary power expired, they are dismissed for want of jurisdiction. Tex. R. App. P. 19.1(b). Very truly yours, VIVIAN LONG, CLERK xc: Honorable Douglas Woodburn (DELIVERED VIA E-MAIL) Caroline Woodburn (DELIVERED VIA E-MAIL) Katherine L. Levy (DELIVERED VIA E-MAIL) Don F. Schofield (DELIVERED VIA E-MAIL) Evidence 103(a)(2). Nothing is preserved for our review.4 Tex. R. Evid. 103(a)(2) (to preserve error on exclusion of evidence party must make substance of the evidence known to the court unless apparent from context); Mays v. State, 285 S.W.3d 884, 889- 890 (Tex. Crim. App. 2009) (applying Rule 103(a)(2)); Tex. R. App. P. 33.1(a). Moreover, even assuming arguendo it was error to exclude the complained-of evidence concerning the convictions of Vasquez and Monnet, any error was harmless. Tex. R. App. P. 44.2(b). These two witnesses were thoroughly cross-examined and their character for truthfulness challenged. We are satisfied the additional convictions would have carried little or no additional impeachment weight. Tex. R. Evid. 609(a). Appellant's issue is overruled, and the judgment of the trial court is affirmed. James T. Campbel Justice Do not publish. For proof of the alleged convictions of Vasquez and Monnet, appellant refers us to documents attached to his amended motion for new trial. His motion for new trial does not satisfy the offer of proof requirement of Rule 103(a)(2). See Tex. R. Evid. 103(c) (court must allow party to make an offer of proof as soon as practicable and before charge is read to jury). ApM** t& BRIAN QUINN Chiefjustice (ttourt nfappeals VIVIAN LONG Clerk JAMES T. CAMPBELL Justice J&ebexril] ^iiatrict of©exaa MAILING ADDRESS: MACKEY K. HANCOCK Justice Putter (&avmiijj (dourts JJEirilbmg P. O. Box 9540 79105-9540 501^. Jftllmon^ufe 2-