NO. AP-75,363 IN THE COURT OF CRIMINAL APPEALS OF TEXAS ...

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Identity of Parties and Counsel Pursuant to TEX. R. APP. P. 38.1(a) (2005), the parties to this suit are as follows: (1) MAX SOFFAR, TDCJ # 000685, TDCJ Polunsky Unit, 3872 FM 30 South, Livingston, Texas 77351, is the appellant and was the defendant in the trial court. (2) The STATE OF TEXAS, by and through the Harris County District Attorney’s Office, 1201 Franklin Street, Suite 600, Houston, TX 77002-1923, is the appelle and prosecuted this case in the trial court. The trial attorneys were as follows: (1) Max Soffar was represented by KATHRYN M. KASE and JOHN P. NILAND of the TEXAS DEFENDER SERVICE, 412 Main Street, Suite 1150, Houston, Texas 78704. (2) The State of Texas was represented by CHARLES A. ROSENTHAL, Jr., District Attorney, and LYN MCCLELLAN, DENISE NASSAR, AND ALAN CURRY, Assistant District Attorneys, 1201 Franklin Street, Suite 600, Houston, TX 77002-1923. The appellate attorneys are as follows: (1) Max Soffar is represented by DAVID R. DOW and JARED P. TYLER of the TEXAS DEFENDER SERVICE, 412 Main Street, Suite 1150, Houston, Texas 78704, and BRIAN W. STULL of the American Civil Liberties Union Capital Punishment Project, 201 W. Main Street, Suite 402, Durham, NC 27707. (2) The State of Texas is represented by CHARLES A. ROSENTHAL, Jr., District Attorney, and the Harris County District Attorney’s Office, ALAN CURRY, Appellate Division Chief, 1201 Franklin Street, Suite 600, Houston, TX 77002-1923.
TABLE OF CONTENTS Page Identity of Parties and Counsel ......................................................................................... ii Table of Contents ............................................................................................................. iii Index of Authorities ......................................................................................................... ix Statement of the Case .................................................................................................... xxvi Statement Concerning Oral Argument ......................................................................... xxix Statement of Facts ............................................................................................................. 1 Summary of the Argument .............................................................................................. 25 Appellant’s First Point of Error .................................................................................. 27 (a) The trial court erred under TEX. R. EVID. 803 (24) in excluding statements against interest establishing that Paul Reid told an accomplice during a Houston robbery that he had previously shot four people in a bowling alley on Route 290. .31 (b) The trial court violated Max Soffar’s federal and state constitutional rights to due process, compulsory process, and to present a defense by precluding evidence of Reid’s admission to shooting four people in a bowling alley on Route 290. ............ 36 Appellant’s Second Point of Error .............................................................................. 47 (a) The trial court violated Appellant’s constitutional right to present a defense by refusing to grant immunity to a witness who would have testified that Paul Reid told him during a crime that Reid had shot four people in a bowling alley on Route 290. ........................................................................................................................................... 48 (b) The trial court violated Appellant’s constitutional right to present a defense by failing to compel Cook to testify because his invocation of the right against self incrimination was improper. ......................................................................................... 51 Appellant’s Third Point of Error ................................................................................. 54 The trial court denied Max Soffar his constitutional right to present a defense by iii
Page 1: NO. AP-75,363 IN THE COURT OF CRIMI
Page 5 and 6: Appellant’s Ninth Point of Error
Page 7 and 8: (a) The trial court committed rever
Page 9 and 10: TABLE OF AUTHORITIES FEDERAL CASES
Page 11 and 12: Giglio v. United States, 405 U.S. 1
Page 13 and 14: Napue v. Illinois, 360 U.S. 264 (19
Page 15 and 16: United States v. Lewis, 592 F.2d 12
Page 17 and 18: Bufkin v. State, 207 S.W.3d 779 (Te
Page 19 and 20: Matamoros v. State, 901 S.W.2d 470
Page 21 and 22: Smith v. State, 70 S.W.3d 848 (Tex.
Page 23 and 24: Vasquez v. State, 919 S.W.2d 433 (T
Page 25 and 26: TEX. CODE OF CRIM. PROC. Art. 19.06
Page 27 and 28: TO THE COURT OF CRIMINAL APPEALS OF
Page 29 and 30: answered special issue No. 3, the "
Page 31 and 32: STATEMENT OF FACTS Midnight on July
Page 33 and 34: front doors was Felsher (the only f
Page 35 and 36: police he could probably identify h
Page 37 and 38: At Max Soffar’s retrial, the tria
Page 39 and 40: officer interpreted as meaning that
Page 41 and 42: owling alley and Bloomfield entered
Page 43 and 44: took their wallets. (30 RR 163). Af
Page 45 and 46: 24 then allegedly showed them the g
Page 47 and 48: 9) Soffar did not mention the ruse
Page 49 and 50: Alvin at approximately 9 or 10:00 a
Page 51 and 52: 33 could find in the family’s med
Page 53 and 54:
When Soffar was given positive atte
Page 55 and 56:
as Soffar’s childhood, focusing o
Page 57 and 58:
justification to block its admissio
Page 59 and 60:
shot him. Id. In his sworn affidavi
Page 61 and 62:
1980, providing a foundation for in
Page 63 and 64:
53 Burks, 876 S.W.2d at 904-05. Coo
Page 65 and 66:
inquiry by Cook, who had no connect
Page 67 and 68:
court had relied on state evidentia
Page 69 and 70:
affidavit. (26 RR 91-94). The prose
Page 71 and 72:
68 perpetrator” theory. The one-s
Page 73 and 74:
scene that matched those of Soffar
Page 75 and 76:
Other evidence confirmed that Soffa
Page 77 and 78:
other than the Defendant committed
Page 79 and 80:
Defense counsel’s request was for
Page 81 and 82:
was available. (26 RR 91-94). His t
Page 83 and 84:
United States v. Waddell, 507 F.2d
Page 85 and 86:
wore no mask or disguise. (32 RR 89
Page 87 and 88:
101 to lie in a group, either in a
Page 89 and 90:
proposed a crime-scene expert who c
Page 91 and 92:
were remarkably similar to the Fair
Page 93 and 94:
operandi inadmissible. This Court h
Page 95 and 96:
First Point of Error. Precluding Re
Page 97 and 98:
Exhibits 58, 60). See also (45 RR 3
Page 99 and 100:
the defense could not point to the
Page 101 and 102:
In any event, there was evidence sh
Page 103 and 104:
esult was a prosecution case untest
Page 105 and 106:
43 RR Defense Exhibits 7, 8, and 9
Page 107 and 108:
testimony (via admission through st
Page 109 and 110:
1970-1980 Representation of Women A
Page 111 and 112:
CODE CRIM. PROC. Arts. 19.01; 19.06
Page 113 and 114:
and Appellant’s right to a fair c
Page 115 and 116:
section and due process claims. See
Page 117 and 118:
RR 19). Because the State failed to
Page 119 and 120:
159 including Sims’s shirt, bulle
Page 121 and 122:
degree of negligence involved, the
Page 123 and 124:
ecause of factual insufficiency. Wa
Page 125 and 126:
present a defense. Because the pros
Page 127 and 128:
Finally, ineffective counsel missed
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Sgt. Clawson and Officer Willoughby
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State’s Exhibit 108). The content
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[accused’s] statement to be a req
Page 135 and 136:
protecting the rights of suspects d
Page 137 and 138:
Following Appellant’s second puta
Page 139 and 140:
617 S.W.2d 211, 221 (Tex. Crim. App
Page 141 and 142:
unimpeached, or contradicted.” Th
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198 (Tex. Crim. App. 1977). Failure
Page 145 and 146:
to instruct the jury on this issue
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202 circumstantial evidence charge)
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the defendant proffers in support o
Page 151 and 152:
ight to present reliable evidence o
Page 153 and 154:
Court should set aside Soffar’s d
Page 155 and 156:
introduce relevant mitigating evide
Page 157 and 158:
out of place) and (3) that the atte
Page 159 and 160:
(d) The trial court committed rever
Page 161 and 162:
considering, and may not refuse to
Page 163 and 164:
PROCEDURE Article 37.071, by the Si
Page 165 and 166:
element of a greater offense.” Ri
Page 167 and 168:
eyond a reasonable doubt. The trial
Page 169 and 170:
polled and stated unanimous agreeme
Page 171 and 172:
the difference between life and dea
Page 173 and 174:
231 and 430% more than San Antonio.
Page 175 and 176:
seek the execution of death-eligibl
Page 177 and 178:
Crim. App. 1986). Where a preponder
Page 179 and 180:
243 law was the only plausible reas
Page 181 and 182:
Conclusion and Prayer WHEREFORE, PR
Page 183 and 184:
Appendix A Shared Characteristics C
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NO. AP-75,363 IN THE COURT OF CRIMINAL APPEALS OF TEXAS ...

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