Cory Martin Colvin v. State

ACCEPTED
06-14-00163-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/22/2015 6:21:02 PM
DEBBIE AUTREY
CLERK
IN THE COURT OF APPEALS
FILED IN
SIXTH DISTRICT OF TEXAS 6th COURT OF APPEALS
TEXARKANA, TEXAS
1/26/2015 4:06:00 PM
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
CORY MARTIN COLVIN
Appellant
Vs 06-14-00163-CR
THE STATE OF TEXAS
Appellee
ON APPEAL FROM
THE 115TH JUDICIAL DISTRICT COURT
OF UPSHUR COUNTY, TEXAS
TRIAL COURT NO. 16,601
BRIEF ON BEHALF OF APPELLANT
TIM CONE
State Bar #04660350
P.O. Box 413
Gilmer, Texas 75644
(903) 725-6270
e-mail: timcone6@aol.com
ATTORNEY FOR THE APPELLANT
2
IDENTITY OF PARTIES AND COUNSEL
CORY MARTIN COLVIN TDCJ#1944671
TDCJ SKYVIEW UNIT
379 F.M. 2972
RUSK, TEXAS 75785
APPELLANT
DWIGHT BRANNON
P.O.BOX 670
GILMER, TEXAS 75644
APPELLANT’S COUNSEL AT TRIAL
BILLY BYRD, UPSHUR COUNTY CRIMINAL DISTRICT ATTORNEY
NATALIE MILLER AND CAMILLE HENSON, UPSHUR COUNTY
ASSISTANT CRIMINAL DISTRICT ATTORNEYS
405 N. TITUS
GILMER, TEXAS 75644
APPELLEE’S COUNSEL AT TRIAL
TIM CONE
P.O. BOX 413
GILMER, TX 75644
APPELLANT’S COUNSEL ON APPEAL
NATALIE MILLER
UPSHUR COUNTY ASSISTANT CRIMINAL DISTRICT ATTORNEY
405 N. TITUS
GILMER, TEXAS 75644
APPELLEE’S COUNSEL ON APPEAL
3
TABLE OF CONTENTS
Page No.
List of Parties and Counsel……………………………………………. 2
Table of Contents……………………………………………………… 3
Index of Authorities…………………………………………………… 5
Statement of the Case…………………………………………………. 7
Point of Error Number One…………………………………………… 9,15
The trial court improperly excused a juror and replaced the juror
with the alternate juror.
Point of Error Number Two……………………………………………. 9,18
The trial court erred in admitting evidence of an extraneous
matter.
Point of Error Number Three………………………………………….. 9,19
The trial court erred in admitting the contents of the Appellant’s
statement to police.
Point of Error Number Four……………………………………………. 9,23
The trial court erred in allowing the State to impeach the Appellant
with testimony from a pretrial hearing.
Statement of Facts……………………………………………………. 10
Summary of Argument………………………………………………. 14
Conclusion and Prayer……………………………………………….. 24
4
Certificate of Compliance……………………………………………. 25
Certificate of Service………………………………………………… 25
5
INDEX OF AUTHORITIES
PAGE
CONSTITUTION:
U.S. Constitution, 14th Amendment……………………………… 18
US SUPREME COURT CASES:
Jackson v. Denno, 378 U.S.368(1964)…………………………… 20
Stansbury v. California, 511 U.S. 318 (1994)……………………. 22
STATE CASES:
Franklin v. State, 606 S.W.2d 818 (Tex.Crim.App. 1979)………. 23
State v. Hutchison, 2014 WL 464096…………………………… 21
Meek v. State, 790 S.W.2d 618 Tex.Crim.App. 1990)…………. 22
Romero v. State, 396 S.W.3d 136 (Tex.App.Houston[14th Dist.]
2013……………………………………………………………… 17
Scales v. State, 380 S.W.3d 780 (Tex.Crim.App. 2012)………… 16
Whitehead v. State, 437 S.W.3d 547 (Tex.App.Texarkana 2014). 17
STATUTES:
Texas Code of Criminal Procedure, Art.38.22…………………… 13,19,20,23
Texas Code of Criminal Procedure, Art. 33.011(b)……………… 16
RULES;
Texas Rule of Evidence, Rule 404………………………………. 18, 19
6
NO. 06-14-00163-CR
IN THE
COURT OF APPEALS
FOR THE
SIXTH JUDICIAL DISTRICT OF TEXAS
CORY MARTIN COLVIN,
APPELLANT
VS.
THE STATE OF TEXAS
APPELLEE
TO THE HONORABLE JUSTICES OF SAID COURT:
7
COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,
hereinafter referred to as Appellant, and submits this brief in support of reversing the
judgment and sentence pursuant to the provisions of the Texas Rules of Appellate
Procedure in Cause No. 06-14-00163-CR in the 115th Judicial District Court of
Upshur County, Texas, (Trial Court Cause No. 16,601).
STATEMENT OF THE CASE
Cory Martin Colvin appeals his conviction for the offense of Aggravated
Sexual Assault of a Child. On November 26, 2013, the Appellant was indicted for the
above referenced offense alleging he penetrated the mouth of a child (C.T.) younger
than fourteen with his sexual organ on or about July 18, 2013. CR8. Originally, the
trial court appointed Charles Van Cleef to represent the Appellant. CR9. Later,
Attorney Barry Wallace was appointed to represent the Appellant but Dwight
Brannon was finally appointed. CR100,102. On May 14, 2014, the State filed a notice
of intent to introduce an outcry statement. CR120, 122. The first notice actually
applies to the child the subject of the extraneous matter (C.M.) and the second notice
applied to the child the subject of the indictment in the case at bar. On May 30, 2014,
the Appellant’s trial counsel filed a motion and order requesting the Appellant be
examined for competency and insanity. CR130. The motion was granted and the
8
court ordered the Appellant be examined by Dr. Tom Allen. CR133. Although the
record provided for preparation of this brief does not contain a report from Dr. Allen,
Appellant’s trial counsel is in receipt of a report filed by Dr. Allen on June 20, 2014,
finding the Appellant competent. Appellant’s trial counsel also filed a notice to raise
an insanity defense on May 30, 2014. CR129. No insanity defense was presented at
trial.
On August 11, 2014, a pretrial hearing was held regarding a rejected plea offer.
2RR. A jury was selected on the same day with an understanding that a pretrial
hearing regarding a statement given by the Appellant and the issue of an outcry
witness would be held prior to the beginning of the trial. 2RR8, 3RR.
On August 12, 2014, a pretrial hearing was held regarding the Appellant’s
statement to the police and on the issue of the outcry witness. The Appellant testified
at the hearing for the limited purpose of the statement issue. The trial court ruled the
outcry statement to be admissible (which included the outcry from C.T and C.M.).
4RR66.The trial court advised a ruling regarding the Appellant’s statement would be
made before the trial started.4RR66.
On August 14, 2014, the trial was to begin. Prior to the beginning of the trial a
juror was dismissed by the trial court and replaced with the alternate juror.5RR6-15.
Further, prior to trial, the trial court ruled the Appellant’s statement was
admissible.5RR17,18. The jury convicted the Appellant of the indicted offense the
9
following day and, after a punishment hearing, the jury assessed a sentence of 99
years confinement.6RR51,114.
For clarity, THE STATE OF TEXAS will be referred to as “the State”, and
Cory Martin Colvin will be referred to as “Defendant” or “Appellant.”
ISSUES PRESENTED
POINT OF ERROR NUMBER ONE
The trial court improperly excused a juror and replaced the juror with the
alternate juror.
POINT OF ERROR NUMBER TWO
The trial court erred in admitting evidence of an extraneous matter.
POINT OF ERROR NUMBER THREE
The trial court erred in admitting the contents of the Appellant’s statement to
10
police.
POINT OF ERROR NUMBER FOUR
The trial court erred in allowing the State to impeach the Appellant with
testimony from a pretrial hearing.
STATEMENT OF THE FACTS
As sufficiency of the evidence is not a point of error in this brief, a somewhat
brief rendition of the facts will suffice except as it relates to the specific points of
error. The Appellant worked as prison guard at the Telford Unit
TDCJ.4RR14.27’5RR151.152. While working at the unit or during his training for
the position, he met another individual also so employed, Christina
Caldwell.5RR153. The two befriended and carpooled.5RR153-155. After a period of
time, the Appellant moved in to the household where Christina lived.5RR156. The
household included Christina’s mother( Doris Caldwell ), Christina’s twenty one year
old brother ( Tyler Tyson ), eleven year old C.T. ( of whom Doris had joint custody
at the time) and Doris’ twelve year old daughter, C.M.5RR37. The males were
required to sleep in an outdoor building that did not have climate control or a
11
bathroom.5RR40,70,71. Apparently, that rule was somewhat relaxed depending on
the weather.5RR41. The Appellant moved into the home (or outbuilding) in July,
2012.5RR36. On July 18, 2013, Doris and C.M. left the residence and, apparently,
left the Appellant and C.T. in the home alone.5RR42. Upon return back to the home,
C.T. told Doris that the Appellant placed his penis in her mouth while Doris and C.M.
were gone.5RR55. Apparently, C.T. had a habit of sucking her thumb.5RR75.
According to what C.T. told Doris, the Appellant placed his own thumb in the child’s
mouth and, later, his penis.5RR55. Doris made an inquiry of C.M. regarding any
inappropriate sexual activity between the Appellant and C.M.5RR56. Doris was told,
at that time, that the Appellant had kissed C.M. on her neck and chest.5RR56. The
police were contacted, CAC interviews were completed.4RR33,57. Later, C.M. told
Doris that the Appellant had done more than she had previously stated.5RR59.
Specifically, C.M. told Doris that the Appellant had touched the outer portion of her
vagina with his penis while both were clothed in short pants and that the Appellant
took a picture of her posterior with his phone but he erased the photo.5RR59. These
were the essence of the outcry statements admitted into evidence at the trial regarding
the allegation of sexual assault of C.T. The Appellant’s trial attorney objected to the
outcry statements at the pretrial hearing and, again, at trial. The objections were
overruled and the statements were admitted regarding both girls, even though the trial
was only for the allegation regarding C.T.4RR64; 5RR46,123. Further, C.M. was
12
allowed to testify regarding the allegations she made about the Appellant’s alleged
activity-also over the objection of Appellant’s trial counsel.5RR46,123. The State
never stated, on the record, their theory of admissibility regarding the allegations of
C.M. and the jury charge given instructed the jury that the evidence was to be used “
in passing upon the acts performed in conformity with the character of the Defendant
in this trial,…”CR176.
While this rendition of the facts of the case are somewhat out of chronological
order, it is done so in an attempt to discuss relevant facts that relate to the points of
error. The above rendition obviously addresses the issue of the extraneous matters
placed before the jury. The next portion of the facts relates to the issue of the excused
juror.
As earlier stated, the jury was selected, but not sworn, on August 11,
2014.3RR. After the jury was selected and the panel had left the building, the record
indicates that a female juror with the last name of Monts had approached the bailiff
and indicated she had some problems with jury service in the case-even though she
had not so indicated during voir dire3RR77,78.. As reflected in the record, both
attorneys were very thorough in addressing this sort of matter.3RR. At that time, the
trial court indicated the matter of the juror would be addressed on Thursday (August
14, 2014).3RR78. On the day of trial-before testimony began- the trial court made
inquiries of juror Ms. Nancy Monts regarding the matter of jury service.5RR6-15.
13
Juror Monts indicated she realized she may have a problem with the type of case at
bar and that she had trouble sleeping, had migraine headaches, and nausea.5RR10,11.
The trial court never asked the juror if she could perform her duties as a juror or made
an in depth inquiry of how the problem areas might affect her ability to serve. The
trial court removed Ms. Monts from the jury noting she was disqualified and unable
to serve due to illness and replaced her with the alternate juror.5RR14.15. The
Appellant’s trial counsel objected to the process but the objection was
overruled.5RR14. His Motion for Mistrial was denied.5RR14.
The next area for discussion in the statement of facts relates to the statement
given by the Appellant to the police. Jeff Bruhn, who was employed in private
business at the time of trial, was the investigator assigned to investigate the
allegations made by C.T. and C.M.4RR11-13. He had been employed by the Upshur
County Sheriff at the time.4RR11,12. Mr. Bruhn testified he reviewed the CAC
interviews with both girls and contacted the Appellant by
telephone.4RR14,23;5RR104. A meeting was scheduled for the Appellant to come to
the Sheriff’s office and meet with then investigator Bruhn.5RR105,106. The
interrogation lasted three hours.4RR9. While the Appellant came to the office in his
own vehicle, and was not handcuffed during the interrogation, at the end of the
interrogation, the Appellant was placed in jail.4RR14-20. He never left the Sheriff’s
office from the time the interrogation began until he was placed in jail.State’s exhibit
14
5 and 6; 4RR20. Although, the investigator told the Appellant he would not be
arrested that day and could leave at the end of the interrogation, those statements
ended up being untrue.State’s Exhibit 5 and 6. It is clear the Appellant was read no
“Miranda” or Texas Code of Criminal Procedure, art. 38.22 warnings.4RR14; State’s
Exhibit 5 and 6. During the interrogation, the Appellant made several incriminating
statements regarding the allegations of C.T. and C.M.State’s Exhibit 5 and 6. The
Appellant testified during the pretrial hearings regarding the limited purpose of
whether he was in custody at the time of the statements and whether the statements
were voluntary. 4RR25-35. He testified he was in custody and he felt he was forced
to make the incriminating statements. 4RR30-35. Under cross examination by the
State-which went well beyond the limited purpose of his testimony- the Appellant
stated, on the record, the allegations were true.4RR31-34. This matter is especially
significant based on the fact that the Appellant testified at trial. Over the objection by
Appellant’s trial counsel, the State impeached the Appellant with the testimony given
at the pretrial hearing when the Appellant denied the allegations of sexual misconduct
with the girls- especially C.T., given that this is the case for which he was
convicted.6RR7-20.
15
SUMMARY OF THE ARGUMENT
The inquiry by the trial court regarding Ms. Monts’ service as a juror did not
establish that she was disqualified from serving as a jury and carrying out her duties.
Her removal was an abuse of discretion.
The admission of the allegation of C.M. was totally inadmissible. The
Appellant was on trial regarding allegations of sexual misconduct of C.T. only. The
State was never required to put in the record their theory of admissibility of the
allegations made by C.M. Extraneous matters are only admissible in a limited number
and type of circumstance but never simply to prove the accused acted in conformity
with his character and must, therefore, be guilty. The jury instruction in the case at
bar instructed the jury the extraneous matter regarding C.M. was to be used for
exactly that forbidden purpose.
The State went well beyond the limited purpose of the Appellant’s testimony at
the pretrial hearing regarding the statement given to the investigator. Further, the
Appellant was in custody at the time of the statement and felt coerced to make the
statement. The statement should have been ruled inadmissible. However, even if
admissible, the impeachment by the statement at trial with the improper testimony the
State elicited at the pretrial hearing was also improper. The testimony from the
16
pretrial hearing should never have existed in the first place but to then allow improper
impeachment by the testimony only contributed to an already unfair trial.
POINT OF ERROR NUMBER ONE
The trial court improperly excused a juror and replaced the juror with the
alternate juror.
ARGUMENT
The appellate standard of review regarding the removal of a juror is that of an
abuse of discretion. State v. Scales, 380 S.W.3d 780 (Tex.Crim.App.2012) The
authority for a trial court to remove a juror and replace that juror with an alternate
juror is set out in the Texas Code of Criminal Procedure, Art. 33.011(b). The juror to
be removed must be unable or disqualified to perform their duties or removed by
agreement of the parties. In the case at bar, juror Nancy Monts is the juror who was
removed and the alternate juror named to replace her. The parties did not agree to
remove her. In fact, Appellant’s trial counsel objected to her removal and asked for a
mistrial. Both were overruled by the trial court. The first indication that there was a
problem with Ms. Monts was on the day of jury selection but was after the jury had
been selected and the jury panel dismissed. It should be noted that both attorneys that
participated in voir dire regarding jury selection were careful to educate the jury panel
regarding the type of case that was involved and gave plenty of opportunities for a
17
potential juror to raise an issue for the trial court to consider. Ms. Monts did not
respond to any of these inquiries. After the jury was selected, the bailiff mentioned to
the trial court that Ms. Monts was crying and indicating uncertainty about serving as
a juror. The trial court announced the matter would be addressed before the trial
started on Thursday of that week. The jury was selected on a Monday.
On the day of trial (August 14, 2014), the bailiff had told the trial court that
Ms. Monts had become weepy and stated that she did not need to be on this case due
to the fact she had young children. Ms. Monts testified she had young children and
indicated she felt ill. She admitted she had not mentioned her problems during voir
dire. She was never asked if she could perform her duty as a juror and she never
stated she could not do so. She was, however, discharged and replaced with the
alternate juror, even though Appellant’s trial counsel pointed out the shortcoming of
the record showing an inability to perform her duty. It is true that a juror may be
excused from duty if an illness prevents the juror from performing the duty of a juror.
State v. Romero, 396 S.W.3d 136 (Tex.App.Houston{14th Dist.} 2013). However, in
the case at bar, the record does not show the juror could not perform her duty. The
record must clearly show that a juror can not perform the duty of a juror to be
excused over the objection of an accused. State v. Whitehead, 437 S.W.3d 547
(Tex.App.Texarkana 2014). Ms. Monts should not have been excused from service
based on the record in this case. While the issue of harm is relevant, harm is difficult
18
to objectively show as it is impossible to know how Ms. Monts would have rendered
a verdict. However, it is clear her replacement returned a verdict of guilty and
assessed what is, in essence, the maximum punishment allowed by law. Clearly, those
verdicts harmed the Appellant.
POINT OF ERROR NUMBER TWO
The trial court erred in admitting evidence of an extraneous matter.
ARGUMENT
It is a fundamental concept of Due Process and Due Course of Law that an
accused is to stand trial for the allegation set forth in the indictment. Texas Rule of
Evidence 404 specifically states that extraneous matters are not admissible in a
prosecution to show that an accused acted in conformity with his character or is a
criminal, generally. The Appellant in the case at bar was on trial for the allegation
regarding sexual assault of C.T. However, the State produced substantial evidence
relating not only to the allegations regarding C.T. but also the allegations made by
C.M. Not only did the outcry witness as to both girls testify, both girls testified at
trial. Appellant’s trial counsel objected regarding these matters but was overruled.
19
The State even mentioned the extraneous matter in its opening statement.5RR31. The
Appellant’s trial counsel objected and the objection was overruled.5RR31. The State
never stated, on the record, their theory of admissibility of the allegations regarding
C.M. The two sets of allegations were not interrelated in that neither girl had made a
statement that they observed or knew of the alleged abuse to the other. The most
troubling aspect of the nature of this prosecution may be the jury charge given by the
trial court. The charge instructed the jury that they were not to consider the
extraneous matters as evidence of guilt but stated the evidence”…was admitted
before you for the purpose of aiding you, if it does aid you, in passing upon acts
performed in conformity with the character of the Defendant in this trial…” In fact,
the jury was instructed to do the very thing that is forbidden under Rule 404. Not only
was the admission of the evidence regarding the allegations of C.M. inadmissible and
harmful, the jury charge is egregious error. It instructs the jury to do exactly what is
forbidden by law.
POINT OF ERROR NUMBER THREE
The trial court erred in admitting the contents of the Appellant’s statement to
police.
20
ARGUMENT
It is without question that a suspect who is in custody, must be given proper
warnings if a statement is to be admissible at trial. Texas Code of Criminal
Procedure, Art. 38.22. The warnings are set out in the above referenced statute and
need not be repeated here. They are also often known as the “Miranda” warnings.
Therefore, the warnings must be given to a suspect if he is in custody under both state
and federal law. Further, a statement given by a suspect-whether in custody or not-is
not admissible at trial if not voluntarily given. Jackson v. Denno, 378 U.S. 368
(1964).In the case at bar, the investigator telephoned the Appellant at his place of
employment (a prison unit) and asked the Appellant to come see him. The
appointment was arranged and the Appellant arrived at the appointed place at the
appointed time by driving his personal vehicle to the Sheriff’s office. There was then
an approximately three hour interrogation by Investigator Jeff Bruhn. The record is
clear no “Miranda” or 38.22 warnings were ever given to the Appellant. While the
Appellant was told he would not be arrested and his property would be returned to
him before he left the Sheriff’s office that day, he was not allowed to leave and his
property was not returned to him. He was arrested and has remained incarcerated
from that day (8/26/13) until today. The Appellant made several incriminating
statements regarding both girls during the interrogation. The Appellant, during a
pretrial hearing testified he felt forced to give the incriminating statements, and,
21
therefore, the statements were not voluntary. At the pretrial hearing the Appellant
testified and was cross examined by the State. His testimony was for the limited
purpose of voluntariness of the statement and to determine the issue of custody. The
State’s cross examination went far beyond the scope of the hearing by asking the
Appellant if the incriminating statements were true and the Appellant replied in the
affirmative but continued to testify he felt forced to give the statements. While such
cross examination was improper and, to a degree, relevant to this point of error, that
issue will be even more important in the next issue. The first issue in this point of
error involves whether the statement was voluntary or not. The Appellant continually
testified the statement was involuntary and his testimony is, essentially
uncontradicted. The investigator testified he did not threaten or coerce the Appellant
but only the Appellant would know if the statement was coerced and he testified it
was. Further, the trial court made no findings of fact or conclusions of law, as
required, but admitted the statement into evidence.
The second issue in this point of error revolves around whether the Appellant
was in custody at the time of the statement or not. The statement is clearly the result
of interrogation so only the issue of custody remains. Since warnings were not given,
the statement is inadmissible if he was in custody. As noted in the record, the trial
court overruled the Appellant’s trial court objection to the admission of the statement
under the issue of voluntariness and custody. In a recent case, this court has held that
22
when a reasonable person believes his freedom of movement is restrained, he is in
custody. State v. Hutchison, 2014WL464096. The Appellant in the case at bar
testified he felt his freedom of movement was restricted and, interestingly, the
investigator never told the Appellant he was free to leave or terminate the
interrogation. Given the circumstances, the Appellant’s belief was reasonable. In fact,
he was not free to leave and was not allowed to do so. There is some authority that an
appellate court looks at the objective circumstances to determine custody and not the
subjective belief of the police or the suspect. Stansbury v. California,511 U.S. 318
(1994). Another method of determining the issue of custody has been established in
Meek v. State, 790 S.W.2d 618 (Tex.Crim.App. 1990). This analysis requires an
evaluation of four factors,to-wit: (1) the subjective intent of the police, (2) the
subjective belief of the defendant, (3) the existence of probable cause to arrest, and
(4) the focus of the investigation. In the case at bar, the Appellant was clearly the
focus of the investigation. Since the testimony of a child as to sexual abuse, alone, is
sufficient to sustain a conviction beyond a reasonable doubt, it also would seem clear
that the allegations made by the children in the CAC interviews (the contents of
which were known to the investigator before the interview with the Appellant) were
adequate to establish probable cause for the arrest of the Appellant. The subjective
belief of the Appellant has already been discussed. The subjective belief of the police
is a little difficult to ascertain but it is clear he did not allow the Appellant to leave the
23
premises and did not tell the Appellant he was free to leave once he arrived for the
interrogation. A fair review of these factors, as well as an analysis under any of the
above referenced methods of analysis seem to clearly show the Appellant was in
custody at the time of the statement. The trial court erred in admitting the statement
of the Appellant under either a theory of not being voluntarily made or that the
requirements of 38.22 were not followed. The harm of the incriminating statements is
clear.
POINT OF ERROR NUMBER FOUR
The trial court erred in allowing the State to impeach the Appellant with
testimony from a pretrial hearing.
ARGUMENT
It has long been clear that the testimony given by an accused at a pretrial
hearing can not be used for impeachment at trial when the pretrial testimony was for
a limited purpose. Franklin v. State, 606 S.W.2d 818 (Tex.Crim.App. 1979). The use
of the pretrial testimony in the case at bar seems especially egregious because the
testimony the State used to impeach the Appellant at trial should never have existed,
in the first place. At a pretrial hearing regarding the voluntariness of the Appellant’s
24
statement and the issue of whether he was in custody at the time of the statement, the
Appellant testified for the limited purpose of that hearing. Whether or not the
statements he made were true or not were irrelevant for the purpose of that hearing.
Nevertheless, the State asked the Appellant during that hearing if the incriminating
statements he made were true or not. The Appellant testified the statements were true
but he felt forced to make them. At trial, the Appellant testified that he did not
sexually abuse either C.T. or C.M. After a lengthy discussion on the record regarding
the State attempting to impeach the Appellant at trial with the admissions that were
obtained at the pretrial hearing that were beyond the scope of that hearing, the trial
court allowed the impeachment over the objection of the Appellant. The amount of
harm in this context is incalculable but certainly great. The impeachment allowed the
State to portray the Appellant as a liar when the very statements used to create that
impression were manufactured by the State when asking irrelevant questions at a
pretrial hearing.
CONCLUSION AND PRAYER
25
For the reasons herein alleged, the judgment and sentence of the trial court
should be reversed and remanded for a new trial.
Respectfully submitted,
/s/Tim Cone
____________________
TIM CONE
Attorney At Law
P.O. Box 413
Gilmer, Texas 75644
e-mail: timcone6@aol.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Texas Rules of Appellate
Procedure, Rule 9 regarding length of documents, in that exclusive of caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix, it consists of 3389 words.
/s/Tim Cone
______________________
TIM CONE
ATTORNEY FOR APPELLANT
26
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s Brief
has been provided to the Honorable Natalie Miller, Upshur County Assistant
Criminal District Attorney on January 22, 2015.
/s/Tim Cone
_____________________________
TIM CONE
Attorney At Law