Henley, Gregory Shawn ( 2015 )

PD-0257-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
August 18, 2015 Transmitted 8/17/2015 3:33:23 PM
Accepted 8/18/2015 8:09:09 AM
ABEL ACOSTA
No. PD-0257-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
GREGORY SHAWN HENLEY, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Tarrant County
*****
APPELLANT’S BRIEF ON THE MERITS
*****
WILLIAM S. HARRIS
Attorney for Appellant/Respondent
State Bar of Texas No. 09096700
307 W. 7th Street, Suite 1905
Fort Worth, Texas 76102
Phone: (817) 332-5575
Fax: (817) 335-6060
Email: wmsharris.law@sbcglobal.net
NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT
The names of all parties listed in the State’s Brief on the Merits is
correct and is adopted by the Appellant.
i
TABLE OF CONTENTS
NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT. . I
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 1
RESPONSES TO ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii
TABLE OF AUTHORITIES
Statutes, Rules and Constitutions.
TEX. PENAL CODE § 22.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TEX. PENAL CODE §1.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TEX. PENAL CODE §20.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TEX. PENAL CODE, §9.31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16
TEX. PENAL CODE §9.33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
USCS Const. Amend. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Cases.
Barton v. State, 172 Tex. Crim. 600, 361 S.W.2d 716 (1962).. . . . . . . . . . 9
Carter v. State, 515 S.W.2d 668 (Tex.Cr.App. 1974). . . . . . . . . . . . . . . . 9
Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App. 2011). . . . . . . . . . . 13
Day v. State, 532 S.W.2d 302 (Tex.Cr.App. 1976). . . . . . . . . . . . . . . . . . 9
Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App. 1979). . . . . . . . . . . . . . . 8
Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991). . . . . . . . . . 17
Ferrel v. State, 55 S.W.3d 586 (Tex. Crim. App. 2001). . . . . . . . . . . . . 17
Garcia v. State, 528 S.W.2d 604 (Tex. Crim. App. 1975). . . . . . . . . . . . 12
iii
Garcia v. State, 605 S.W.2d 565 (Tex.Cr.App. 1980). . . . . . . . . . . . . . . . 8
Hayes v. State, 728 S.W.2d 804 (Tex. Crim. App. 1987). . . . . . . . . . . . . 9
Hebert v. State, 836 S.W.2d 252 (Tex. App. 1992). . . . . . . . . . . . . . . . . 13
Henley v. State, 454 S.W.3d 106 (Tex. App.–Fort Worth 2014). . . . 8, 17,
19, 20
Johnson v. State, 571 S.W.2d 170 (Tex.Cr.App. 1978). . . . . . . . . . . . . . . 8
Macias v. State, 2015 Tex. App. LEXIS 2319 (Tex. App. Corpus Christi
Mar. 12, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App., 1990). . . . . . . . 3
Moon v. State, 607 S.W.2d 569 (Tex.Cr.App. 1980). . . . . . . . . . . . . . . . . 8
Richardson v. State, 622 S.W.2d 852 (Tex. Crim. App. 1981). . . . . . . . 12
Rock v. Arkansas, 483 U.S. 44 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007). . . . . . . . . 9,10-12
Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App. 1979). . . . . . . . . . . . . . 9
Warren v. State, 565 S.W.2d 931 (Tex.Cr.App. 1978). . . . . . . . . . . . . 8, 9
iv
STATEMENT REGARDING ORAL ARGUMENT
Oral argument was not permitted.
RESPONSES TO ISSUE PRESENTED
Response No. 1: The Court of Appeals correctly held that the
appellant was entitled to present evidence that he acted in
defense of a third person.
Response No. 2: The exclusion of evidence that was basic to the
appellant’s right to confrontation and cross-examination, while
related to the defense of a third person, is an independent
ground for sustaining the ruling of the Court of Appeals.
STATEMENT OF FACTS
Appellant regards the state’s recitation of the facts as accurate.
There is one supplemental addition to the state’s account. After the
Appellant stopped his attack on the complainant, after he stepped away
and made a call on his cell phone, Brandy called 911 again.1 Nothing in
the record suggests that Appellant was aware that the 911operator on
the first call had told Brandy to remain on the scene and await an
officer.
SUMMARY OF ARGUMENT
Response No. 1: The Court of Appeals correctly held that the
1
5 RR 70.
1
Appellant was entitled to present evidence that he acted in
defense of a third person.
The State’s argument is flawed in its interpretation of the
relevant authority and in its limits on the definitions of terms relevant
to the determination of these issues.
Response No. 2: The exclusion of evidence that was basic to the
Appellant’s right to confrontation and cross-examination, while
related to the defense of a third person, is an independent
ground for sustaining the ruling of the Court of Appeals.
While there is some overlap between the Court of Appeals first
holding of error, it is not complete. The Court of Appeals also found
that the ruling of the trial court deprived the Appellant of the right to
confront and cross examine the witnesses against him. In addition to
the defense that Appellant sought to advance, this also deprived him of
the meaningful ability to impeach his accusers. This is an independent
ground upon which the Court of Appeals reversal should be
maintained.
ARGUMENT
Standard of Review.
The Court reviews error in refusing to admit evidence under the
2
abuse of discretion standard.2
Response No. 1: The Court of Appeals correctly held that the
Appellant was entitled to present evidence that he acted in
defense of a third person.
Throughout the trial, Appellant urged the court to allow him to
present evidence on what he was trying to talk to Brandy Gillingham
about, and why he was agitated. The jury was allowed to hear that Ms.
Gillingham’s visitation with her sons was required by the family court
to be supervised by her mother or her father.3 The trial court ruled
they could not be informed of why her visits were supervised,4
Outside the presence of the jury, the Appellant developed that the
boys had been sexually abused by A. G., the stepson of Douglas
Gillingham, who was the boyfriend at the time of Ms. Gillingham.5 A.
G. had forced the two boys to perform sexual acts on one another in his
presence. S. H., the younger boy, also alleged that Douglas Gillingham
had choked him, although apparently Child Protective Services did not
2
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App., 1990).
3
5 RR 80.
4
4 RR 29, 5 RR 41.
5
Ms. Gillingham married Douglas Gillingham about a week after the assault,
5 RR 89.
3
find that accusation to be credible. Ms. Gillingham personally
dismissed this accusation as not happening. The Appellant believed it
had happened.
Nevertheless, the family court was sufficiently concerned that it
ordered that Ms. Gillingham’s visitations be supervised and that the
boys not be around Douglas Gillingham. Ms. Gillingham had told the
family court she was no longer living with Douglas Gillingham, but she
admitted on cross examination, outside the presence of the jury, in this
trial that that was a lie and that Appellant knew it was a lie when she
made that representation to the SAPCR court.6
There apparently was an issue between Appellant and Ms.
Gillingham about the number of times the sexual abuse occurred and
how seriously Ms. Gillingham had taken the initial reports of abuse. J.
H., the older boy, suffers from autism and S. H. from ADHD. On
approximately the Thursday prior to the day of assault, S. H., in
counseling corroborated what J. H. had told his mother about the abuse
and, apparently for the first time, revealed that it had happened on
6
5 RR 86-88.
4
more than one occasion and on one occasion when Ms. Gillingham was
in the house in a separate room. From these revelations in counseling,
Appellant learned that the abuse had been more extensive and occurred
on more occasions than they had first thought, 5 RR 111-113. J. H. had
been saying all along that he had told his mother about the abuse, but
this was the first time S. H. confirmed that. The confirmation that J.
H. had told his mother and she had said she would take care of it,
apparently led Appellant to believe that Ms. Gillingham had minimized
the situation. He was trying to talk to her about it when she showed
up for visitation, but she would not discuss it with him.7 He felt she
was, again, dismissing his concerns about their boys.8 When he tried to
tell Ms. Kennedy, the chaperone, she totally ignored him, also.9 Thus,
Appellant thought that Ms. Gillingham taking possession of the boys
was placing them in danger of abuse. With the boys in the car, this
danger was, to his thinking, immediate.
Appellant’s defense was that he had acted in defense of third
7
5 RR 111.
8
Id.
9
Id.
5
parties, his sons. Defense of a third party is statutorily defined in
section 9.33 of the Penal Code. It consists of the following elements:
1. Under the circumstances as the actor reasonably believes them
to be,
2. The actor would be justified in using force under section 9.31 to
protect himself, and
3. The actor reasonably believes that his intervention is
immediately necessary.10
The testimony of Appellant was evidence that he had a reasonable
belief that his ex-wife and former mother in law did not perceive the
boys to be in any serious danger from Douglas Gillingham and that
they minimized or did not believe full measure of the boys reports of
abuse. He had reason to believe that his wife was lying about the
extent to which she was keeping the boys away from Douglas
Gillingham, since by her own admission, she had lied to the SAPCR
court about living with Douglas Gillingham. And, it was apparent that
neither his ex-wife nor his former mother in law were willing to listen
10
TEX. PENAL CODE §9.33.
6
to the new information he was trying to convey to them. This created a
reasonable apprehension of danger from Appellant’s view point. Even
after the bill of review was developed for the court, the court denied the
Appellant the right to present the evidence, despite the Appellant’s
objection that the court was preventing him from putting on a
defense.11
If Appellant had been as comparatively powerless as the two boys
and as limited in reporting their needs for protection, he would have
been justified in using force to leave the car. The prosecutor argued
there was no immediacy because the revelation by S. H. had been made
days before.12 This misidentified what the immediate danger was.
Appellant testified that he believed that the boys were being taken
from him into danger and that was the immediacy that motivated him.
Ultimately, after repeatedly excluding the evidence, the court ruled the
evidence did not raise an issue of defense of a third party and would not
let Appellant put on evidence to prove this factual situation.13 When the
11
5 RR 121.
12
5 RR 118.
13
5 RR 121.
7
court ruled that Appellant could not put forward evidence of the
reasons for the supervised visitation, Appellant complained that this
would deprive him of meaningful cross examination and confrontation
of the complainant.14
The Court of Appeals ruled that the trial court had erred in not
allowing the Appellant to put forward his defense and not allowing him
to adequately confront and cross examine his accuser.15
Defense of a Third Person.
The law is well established that if there is evidence that raises the
elements of a defense, the Appellant is entitled to a charge on the
defense and to have evidence submitted to the jury for a factual
determination by the jury.
This Court has consistently held that an accused is entitled
to an instruction on every defensive issue raised by the
evidence. Moon v. State, 607 S.W.2d 569 (Tex.Cr.App. 1980);
Garcia v. State, 605 S.W.2d 565, 566 (Tex.Cr.App. 1980);
Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978);
Warren v. State, 565 S.W.2d 931, 933-4 (Tex.Cr.App. 1978);
Esparza v. State, 520 S.W.2d 891, 892 (Tex.Cr.App. 1979).
This is true regardless of whether such evidence is strong or
14
4 RR 28.
15
Henley v. State, 454 S.W.3d 106, 114, 116 (Tex. App.–Fort Worth 2014).
8
weak, unimpeached or contradicted, and regardless of what
the trial court may or may not think about the credibility of
this evidence. Warren v. State, supra; Shaw v. State, 510
S.W.2d 926 (Tex.Cr.App. 1974) (opinion on motion for
rehearing); Carter v. State, 515 S.W.2d 668 (Tex.Cr.App.
1974).
It is also well settled that a defendant's testimony alone is
sufficient to raise a defensive issue requiring an instruction
in the jury charge. Warren v. State , supra; Simpkins v.
State, 590 S.W.2d 129, 132 (Tex.Cr.App. 1979); Day v. State,
532 S.W.2d 302, 306 (Tex.Cr.App. 1976). This is particularly
true when, as is the case here, Appellant made a proper and
timely request for such a charge. Warren v. State, supra, at
934; see also Barton v. State, 172 Tex. Crim. 600, 361 S.W.2d
716 (1962).16
The Appellant explained that he feared that his wife might expose
the boys to Douglas Gillingham or A. G., based upon her lying to the
SAPCR court about continuing to live with the man, her minimizing
attitude about the severity and extent of the abuse, her disbelief that
Douglas Gillingham had choked S. H., and her unwillingness to discuss
these issues or listen to the new information that had been revealed in
counseling. Had he been in a position where he was being forcibly
removed to a place where he would be endangered, as the boys were, he
16
Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987).
9
would have been entitled to use force to prevent the removal.17 And
finally, it was immediately necessary because Ms. Gillingham was
about to leave with the boys. Thus, the evidence raised the defense.
Even if the jury ultimately did not accept the defense, the Appellant
was entitled to have the jury, not the court, make that decision. The
court again denied Appellant the right to place this evidence before the
jury, thus overruling his request.
The State’s complaint.
The State complains that the Court of Appeals has misinterpreted
the law of self defense and defense of a third person. The first
complaint is that the Appellant’s statement of the imminent danger he
perceived was not sufficient to raise an issue of defense of a third
person.18 While Appellant agrees that the standard for making this
decision set forth in Shaw v. State19, the State misapplies the standard
17
See TEX. PENAL CODE, §9.31.
18
State’s Brief on the Merits (hereafter State’s Brief) p. 13.
19
Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App. 2007).
10
to the evidence in this case.20
In Shaw, the defendant, who was not trained in the medical arts,
aggressively administered CPR to her grandson. In the initial report of
the doctor who examined the boy, he found that the fatal head injury
could have been caused by aggressive CPR. The defendant asked for an
instruction on the “Good Samaritan Defense.”21 While this Court did
not dispute that there was prima facie evidence of the elements of the
defense, it found that, because the defense is in the nature of a
confession and avoidance defense, and because there was no evidence of
a culpable mental state when the defendant administered CPR, she
20
On page 14 of the State’s Brief, the State quotes this Court in Shaw as
follows: “To prevent this, the trial court ‘must rely on its own judgment, formed in
the light of its own common sense and experience, as to the limits of rational
inference from the facts proven.’” The use of the word “proven” in this context is ill
advised. All the prima facie case must provide is some evidence from which the
finder of fact may rationally conclude that there is at least a reasonable doubt that
the defensive element exists.
21
(k) It is a defense to prosecution under this section that the act or omission
consisted of:
(1) reasonable medical care occurring under the direction of or by a
licensed physician; or
(2) emergency medical care administered in good faith and with
reasonable care by a person not licensed in the healing arts.
TEX. PENAL CODE § 22.04(k)(1)(B).
11
was not entitled to the defense.22
In a similar vein, the cases cited in Shaw as precedence also turn
on whether all the elements necessary to believe the defense are
present at all in the evidence. In Richardson v. State23 the defense
instruction requested was entrapment. The Court found the record was
devoid of any suggestion that law enforcement had induced the
defendant possess marijuana. In Garcia v. State24 the Court found that
the defendant’s testimony that he had been advised by law enforcement
that his murder was sought by another and that he should protect
himself was evidence that he was induced to violate the law against
carrying a firearm.25
The State suggests that the defendant’s testimony alone is not
enough to support a rational finding by a jury in support of the
defense.26 In this instance, in his bill of review, the Appellant
22
Shaw, supra at 659.
23
Richardson v. State, 622 S.W.2d 852, 856 (Tex. Crim. App. 1981).
24
Garcia v. State, 528 S.W.2d 604, 605 (Tex. Crim. App. 1975).
25
Id.
26
State’s Brief p. 18.
12
explained his fear and his reasons for that fear; his ex-wife’s and her
chaperone’s indifference to the concern, and his ex-wife’s willingness to
commit perjury to cover up her disobedience to the SAPCR court’s
orders. The State describes this testimony as conclusory, but that
simply is not so. The Appellant detailed what he feared would happen
and why he feared it would happen. He made these statements under
oath. If, as the State suggests, his testimony is not enough to create a
prima facie evidence of the elements of the offense because it came from
the defendant, then they are suggesting a de jure rule that the
testimony of the defendant be treated differently from that of other
witnesses merely because he is the defendant. If that were the law, it
would surely be a violation of due process.27
The undefined terms.
Terms that are not defined by statute are given their common
meaning.28 The State engages in an analysis of non-statutorily defined
terms in the self defense and defense of a third person statutes,
27
Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 2708-09 (1987); Hebert
v. State, 836 S.W.2d 252, 255 (Tex. App. 1992).
28
Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011).
13
purporting to show that the Appellant is not entitled to the defense of
defense of a third person.29
“Other.”
While the Corpus Christi Court of Appeals did say in Macias v.
State30 that the term in the statute logically refers to the other who is
threatening the use of unlawful force, it should also be noted that
Macias is an unreported opinion and this suggestion has not been
approved by this Court. Further, if the legislature had intended to so
limit the term other, it could have done so by adding the phrase,
“threatening or using unlawful force.”
Moreover, the State is simply trying to divert attention from the
forcible act that was being committed by Brandy Gillingham. She was
taking the boys from the defendant, possibly to a location where they
would be exposed to Douglas or A. G.
“Unlawful force.”
29
State’s Brief, pp. 14-21.
30
Macias v. State, 2015 Tex. App. LEXIS 2319 *18 (Tex. App. Corpus Christi
Mar. 12, 2015).
14
The Penal Code defines “unlawful” as being criminal or tortious.31
Had the Appellant been the person in the car and he believed that he
was being taken to a place where he would be exposed to harm, he
would clearly have been entitled to use the force necessary to extricate
him from the car. Appellant believed, in light of the indifference shown
by both Brandy and her mother, that this was precisely what was in
store for his sons. Taking a person against their free will to a place of
danger would surely constitute criminal or tortious conduct.32 S. H.
and J. H. were minors to whom we do not afford the free volition to
resist the directions of their parents.
“Force,” on the other hand, is a word of common usage, not
defined by statute. It has many definitions when used as a noun, as it
is here. One definition is: “Strength or energy as an attribute of
physical action or movement.”33 It is also defined as: “Coercion or
31
TEX. PENAL CODE §1.07(48).
32
Arguably, the removal of the boys from Appellant’s custody was an
unlawful restraint under TEX. PENAL CODE §20.02. Brandy would have had a
defense to such a charge as a relative of the minor children trying to take lawful
custody, but the existence of a defense does not alter the potentially unlawful
character of the conduct.
33
OXFORD U. S. ENGLISH DICTIONARY; Oxford University Press, 2015.
15
compulsion, especially with the use or threat of violence.”34 The moving
or restraining of someone against their will is clearly contemplated in
the meaning of unlawful force in the self defense statute, because it is
one of the situations in which the immediate need for force is
presumed:
The actor's belief that the force was immediately necessary
as described by this subsection is presumed to be reasonable
if the actor: (1) knew or had reason to believe that the
person against whom the force was used: . . . unlawfully and
with force removed, or was attempting to remove unlawfully
and with force, the actor from the actor's habitation, vehicle,
or place of business or employment.35
“Immediately necessary”
While Appellant does not dispute the common usage asserted by
the State for these words in the State’s Brief, p. 17, Appellant disagrees
with the State’s concept of the harm to be avoided. It is not and was
not (at least immediately) the actions of Douglas or A. G., but rather
the removal from Appellant’s care of two small boys whose mother and
grandmother were indifferent to the danger in which they were likely
placing the boys if exposed to Douglas or A. G.
34
Id.
35
Tex. Penal Code § 9.31(a)(1)(B).
16
The State makes reference to the defense of necessity, pointing
out its similarity to defense of a third person.36 The State
acknowledges the necessity defense adds the term “imminent harm”
and acknowledges the grammatical difference between “immediately
necessary” and “imminent harm.” However, the State then seeks to
equate them with the observation that when there is an imminent
harm action to avoid it is immediately necessary. However, what the
State does not address is that the same is not so certain if you reverse
order. An action may be, as here, immediately necessary, yet the harm
may not be so imminent. The Court of Appeals found the leaving with
the boys to be the act that created an immediate necessity, even though
the feared harm might not be imminent.37
Finally, it should be remembered that all of these definitions are
viewed in the light most favorable to the defense38 and from the actor’s
point of view.39 The Appellant explained in detail why he thought his
36
State’s brief, pp. 17-18.
37
Henley v. State, supra at 116.
38
Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).
39
Ex parte Drinkert, 821 S.W.2d 953, 955 (Tex. Crim. App. 1991).
17
sons were in danger if they left with his ex-wife and former mother in
law. He had new information which led him to believe that Douglas
and A. G. presented a greater danger to the boys than Brandy had
acknowledged or accepted. Her refusal to listen to him, to be informed
of new corroborative information, reasonably led him to believe that the
SAPCR court’s orders would not be obeyed. After all, Brandy perjured
herself in order to continue breaking one of the SAPCR court’s orders;
that she stop living with Douglas.40 Clearly, she did not take the threat
her boyfriend posed to her children seriously.
Response No. 2: The exclusion of evidence that was basic to the
Appellant’s right to confrontation and cross-examination, while
related to the defense of a third person, is an independent
ground for sustaining the ruling of the Court of Appeals.
The State does not fully address the fact that the Court of Appeals
ruled that the exclusion of all of the evidence about the ongoing custody
fight and was a violation of the Appellant’s right to confrontation and
cross examination.
In his second issue, Appellant argues that the trial court
improperly limited his right to cross-examine and confront
the witnesses against him by not allowing him to question
40
5 RR 86.
18
Brandy and her mother about the new allegations that had
emerged during the children’s counseling concerning abuse
during Brandy’s times of possession. We agree and hold that
the trial court so erred.41
Even if Appellant were not entitled to the defense of a third person
defense, he was still entitled to impeach Brandy. A substantial part of
her motivations to testify as she did against the Appellant were
basically unrevealed. The State was allowed to sanitize their
complainant and even to argue, falsely, that there was no excuse for
Appellant’s attack on Brandy.42
Appellant’s right to a new trial based on this violation of his
rights under the 6th Amendment43 should not be disturbed. As the
Court of Appeals pointed out, the right to present the defense of a third
person defense and the right to confront and cross examine the
complainant overlap, but both were errors of constitutional dimension.
In his second issue, Appellant argues that the trial court
improperly limited his right to cross-examine and confront
the witnesses against him by not allowing him to question
Brandy and her mother about the new allegations that had
41
Henley v. State, supra at 116 (Tex. App. 2014).
42
5 RR 128,135.
43
USCS Const. Amend. 6.
19
emerged during the children's counseling concerning abuse
during Brandy's times of possession. We agree and hold that
the trial court so erred.
Appellant correctly argues that denial of the right of
confrontation and cross-examination is an error of
constitutional magnitude. And the trial court's error here
was exacerbated by the State's jury argument.44
Even if the Court should rule that Appellant was not entitled to the
defense of a third person, depriving him of the right to effectively cross
examine Brandy and her mother constitutes an independent ground for
reversing the trial court not complained of by the State.
PRAYER
In accordance with the foregoing arguments and authorities, the
Appellant prays the court will affirm the Court of Appeals.
Respectfully submitted,
WILLIAM S. HARRIS
Attorney and Counselor at Law
307 West 7th Street, Suite 1905
Fort Worth, Texas 76102
Phone: (817) 332-5575
Faxed: (817) 335-6060
44
Henley v. State, supra at 116 (Tex. App. 2014).
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Email: wmsharris.law@sbcglobal.net
By: /S/ Wm. S. Harris
William S. Harris
State Bar No. 09096700
Attorney for Gregory Shawn Henley
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing has been served on Mr.
John R. Messinger, Assistant State’s Attorney, and on Ms. Debra
Windsor, Assistant Criminal District Attorney, by use of the electronic
filing systems service function.
Signed this the 17th day of August, 2015.
/S/ Wm. S. Harris
William S. Harris
CERTIFICATE OF COMPLIANCE
I certify that the Word Perfect word count tool for this document
is 3882.
/S/ Wm. S. Harris
William S. Harris
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