Thomas Little v. State ( 2015 )

ACCEPTED
04-14-00618-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
5/26/2015 11:18:29 AM
KEITH HOTTLE
CLERK
No. 04-14-00618-CR
FILED IN
4th COURT OF APPEALS
IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS
AT SAN ANTONIO, TEXAS 5/26/2015 11:18:29 AM
KEITH E. HOTTLE
Clerk
THOMAS LITTLE
Appellant
vs.
THE STATE OF TEXAS
Appellee
On Appeal from the 25th District Court
of Guadalupe County, Texas
Hon. William D. Old, III Presiding
Trial Court Cause No. 14-0698-CR-C
APPELLANT’S REPLY BRIEF
Gregory Sherwood
Attorney at Law
P.O. Box 200613
Austin, Texas 78720-0613
(512) 484-9029
Email: gsherwood@mail.com
State Bar No. 18254600
Court-Appointed Attorney on Appeal
for Appellant Thomas Little
Table of Contents
Table of Contents ............................................................................................ i
Index of Authorities ...................................................................................... ii
Conclusion and Prayer for Relief ................................................................... 3
Certificate of Service ..................................................................................... 3
Certification of Word Count Compliance ...................................................... 3
i
Index of Authorities
Statutes and Rule
Tex. Code Crim. Pro. art. 38.22, § 2(a)(5) ..................................................... 2
Tex. Code Crim. Pro. art. 38.22, § 8(2) ......................................................... 2
Tex. R. App. P. 9.4(i)(1) ................................................................................ 3
ii
No. 04-14-00618-CR
IN THE FOURTH COURT OF APPEALS
AT SAN ANTONIO, TEXAS
THOMAS LITTLE
Appellant
vs.
THE STATE OF TEXAS
Appellee
On Appeal from the 25th District Court
of Guadalupe County, Texas
Hon. William D. Old, III Presiding
Trial Court Cause No. 14-0698-CR-C
APPELLANT’S REPLY BRIEF
The State’s Brief fails to discuss appellant’s argument at pages 15-19
and 22-26 (pdf 23-27 and pdf 30-34) of Appellant’s Brief that the warnings
read to appellant by FBI Special Agent Michael Carlisle, which did not
include the right to terminate the interview at any time, did not comply with
state law because Selma Police Department Sergeant Keith Osborn was
present in the interrogation room with federal agents, which renders the
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“substantial compliance” exception for federal agents reading these
warnings under Tex. Code Crim. Pro. art. 38.22, § 8(2) inapplicable. The
trial court’s April 9, 2015 findings of fact and conclusions of law also fail to
mention Selma Police Department Sgt. Osborn, instead only stating that FBI
Special Agent Carlisle conducted the interview and read warnings that
complied with federal law.
As previously stated at page 17 (pdf 25) of Appellant’s Brief, “If the
only interrogators had been FBI agents, then appellant’s video statement
would be admissible under art. 38.22, § 8(2) since the ‘Miranda’ warnings
read by FBI agent Carlisle complied with federal law.” But because Selma
Police Dept. Sgt. Osborn was present in the interrogation room and
participated in the interview by asking questions, appellant’s video statement
was taken by both federal and state law enforcement officers, rendering art.
38.22, § 8(2) inapplicable. The fifth warning in art. 38.22, § 2(a)(5)
concerning Mr. Little’s right to terminate the interview at any time should
have been read to him since the interview was conducted by both federal and
state law enforcement officers, and the trial court erred in its findings of fact
and conclusions of law in holding that art. 38.22, § 8(2) applied.
2
Conclusion and Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, appellant THOMAS
LITTLE prays that this court grant one or both of the jury charge error issues
presented, and reverse and remand for a new trial if either issues are granted.
Respectfully submitted,
/s/ Gregory Sherwood
GREGORY SHERWOOD
Attorney at Law
P.O. Box 200613
Austin, Texas 78720-0613
(512) 484-9029
Email: gsherwood@mail.com
State Bar No. 18254600
Court-Appointed Attorney on Appeal
for Appellant Thomas Little
Certificate of Service
I hereby certify that a true copy of this document was served by email
upon appellee’s attorney Edward F. Shaughnessy, III, 206 E. Locust, San
Antonio, Texas, 78212, on May 26, 2015 at the following email address:
Shaughnessy727@gmail.com.
/s/ Gregory Sherwood
Certification of Word Count Compliance
According to the WordPerfect program used to create this document,
there are 315 words in this brief, excluding the portions listed in Tex. R.
App. P. 9.4(i)(1).
/s/ Gregory Sherwood
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