                                                                                     ACCEPTED
                                                                                06-14-00204-CR
                                                                      SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                           3/19/2015 1:43:02 PM
                                                                                DEBBIE AUTREY
                                                                                         CLERK

                         NO. 06-14-00204-CR

                                                               FILED IN
                       **************                   6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
                                                        3/19/2015 1:43:02 PM
                    IN THE COURT OF APPEALS                 DEBBIE AUTREY
                                                                Clerk
              SIXTH APPELLATE DISTRICT OF TEXAS

                        TEXARKANA TEXAS



                           **********


                   CLIFFORD BERNARD NELSON,
                                     Appellant

                                 VS.

                       THE STATE OF TEXAS,
                                       Appellee

                           **********


             Appealed from Gregg County Court at Law No. 1
                       Trial Court No. 2013-1871

__________________________________________________________________

                      BRIEF OF APPELLANT
__________________________________________________________________


                                            EBB B. MOBLEY
                                            State Bar # 14238000
                                            Attorney at Law
                                            422 North Center St.-Lower Level
                                            P. O. Box 2309
                                            Longview, TX 75606
                                            Telephone: (903) 757-3331
                                            Facsimile: (903) 753-8289
                                            ebbmob@aol.com


                                            ATTORNEY FOR APPELLANT
                                NO.06-14-00204-CR



                         CLIFFORD BERNARD NELSON,
                                           Appellant

                                         VS.

                             THE STATE OF TEXAS,
                                             Appellee


__________________________________________________________________

               IDENTITY OF PARTIES AND COUNSEL
                      Pursuant to T.R.A.P. 38.1(a)
__________________________________________________________________


Appellant:      CLIFFORD BERNARD NELSON              Gregg County Jail


Appellant's    CLEMENT DUNN                          P.O. Box 562
trial counsel: Attorney at Law                       Longview, Texas 75606

State's trial   PAMELA IBEH                          101 East Methvin, Ste. 303
counsel:        Assistant District Attorney          Longview, Texas 75601

Trial Judge:    HON. REBECCA SIMPSON                 101 East Methvin, Ste. 416
                Gregg County Court at Law No. 1       Longview, Texas 75601

Appellant's     EBB B. MOBLEY                         P. O. Box 2309
counsel on      Attorney at law                       Longview, TX 75606
appeal:

State's         ZAN COLSON BROWN                     101 East Methvin, Ste. 303
counsel         Assistant District Attorney          Longview, Texas 75601
on appeal:




                                      Page 1 of 11
                                         TABLE OF CONTENTS

                                                                                                                  Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE NUMBER ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

       Did the trial court err in allowing the State to impeach Erica Minifield
      with her prior inconsistent statement?


         SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8

ISSUE NUMBER TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

         Is there sufficient evidence to support the conviction in this case?

         SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

         ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11




                                                    Page 2 of 11
                                         INDEX OF AUTHORITIES

Cases

Bays v. State, No. 06-10-0045-CR, 2011 Tex.App. LEXIS 95 affirmed at
      396 S.W.3d 580 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . . .9

Burnett v. State, 88 S.W.3d 633, 637-38 (Tex.Crim.App. 2002) . . . . . . . . . . . . . . . . . 10

Carter v. State, 150 S.W.3d 230, 241 n. 13 (Tex.App. - Texarkana 2004, no pet.) . . 8

Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . .9

Crawford v. Washington, 541 U.S. 361 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Gipson v. State, 844 S.W.2d 738 (Tex.Crim.app. 1992) . . . . . . . . . . . . . . . . . . . . . . . .8

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App. - Texarkana 2010, pet. ref’d) . . .9

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . . . 9

Hughes v. State, 4 S.W.3d 1 (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Jackson v. Virginia, 443 U.S. 307, 319 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000) . . . . . . . . . . . . . . . . .10


Mumphrey v. State, 155 S.W.3d 651, 657 n. 1 (Tex.App. - Texarkana 2005,
    pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Winfried Warren Thomas v. State, No. 06-13-00209-CR, slip op. April 25, 2014,
      2014 Tex.App. LEXIS 4512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10

Rules

Texas Disciplinary Rule of Professional Conduct 3.09 . . . . . . . . . . . . . . . . . . . . . . . . .7

Texas Rule of Appellate Procedure 44.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Texas Rule of Evidence 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Texas Rule of Evidence 801(e)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Texas Rule of Evidence 803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Texas Rule of Evidence 803(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6

Texas Rule of Evidence 803(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                                                       Page 3 of 11
                          STATEMENT OF THE CASE

      This is an appeal from a conviction for the misdemeanor offense of assault

causing bodily injury-family violence.    CLIFFORD BERNARD NELSON was tried

and convicted after a bench trial before the Honorable Rebecca Simpson presiding in

the Gregg County Court at Law No. 1. Appellant was sentenced by the judge to 350

days in jail and a $500.00 fine. CR-68.

      For clarity, THE STATE OF TEXAS will be referred to as "the State", and

CLIFFORD BERNARD NELSON will be referred to as "Clifford" or "Appellant."

Erica Minifield Akin will be referred to as “Erica”.




                                ISSUES PRESENTED



                                ISSUE NUMBER ONE

      Did the trial court err in allowing the State to impeach Erica Minifield with her

prior inconsistent statement?

                                ISSUE NUMBER TWO

      Is there sufficient evidence to support the conviction in this case?




                                    Page 4 of 11
                            STATEMENT OF FACTS

      On April 28, 2013, Erica Minifield was taken by ambulance to Longview

Regional Hospital at the insistence of Officer Trevor Yates of the Longview Police

Department. 2 RR 12. Dr. Harold Taylor observed a laceration on Erica’s scalp,

multiple contusions and superficial lacerations to the left side of her face, her right

arm and elbow, and to her right leg. 2 RR 32.

      Erica told Dr. Taylor that Clifford Nelson hit her with a stick. 2 RR 33. Erica

was evaluated, examined, her wounds were cleaned and dressed, and her frontal scalp

laceration was stapled. 2 RR 34. Erica gave an audio/video recorded statement

implicating Clifford at the emergency room at the hospital. 2 RR 13-16, 7 RR SX1.

      At trial Erica testified that Clifford is the father of her 18 and 19 year old

children, and they are still together. Erica stated nothing happened to her on April

28, 2013. 3 RR 39. On that day she did go to Sixteenth Street Park with Rhonda

Lilly and Chad Daniels. 2 RR 40. Erica identified photographs of the injuries she

had suffered and had been treated for at Longview Regional Hospital. 2 RR 46.

      But Erica was not sure who injured her. 2 RR 45. She did not recall telling

anyone who hit her. 2 RR 45. After reviewing the State’s video of her statement to

officers at the Emergency Room she still did not remember who hit her. 2 RR 46.

      On cross-examination Erica repeatedly denied that Clifford injured her. After

being warned by the judge about the perils of perjury at the request of the State, Erica

still testified that Clifford Nelson did not inflict the injuries reflected in the

photographs admitted as State’s Exhibits 2 a,b,c,and d. 2 RR 46-54.




                                      Page 5 of 11
                                ISSUE NUMBER ONE

        Did the trial court err in allowing the State to impeach Erica Minifield with her

prior inconsistent statement?

                        SUMMARY OF THE ARGUMENT

        When a witness is impeached with a prior inconsistent statement, that

statement is being offered not for its truth but to show that the witness lacks

credibility. Under Texas Rule of Evidence 801(e)(1)(A), a prior inconsistent

statement “given under oath subject to the penalty of perjury at a trial, hearing, or

other proceeding except a grand jury proceeding in a criminal case, or in a

deposition” may be offered for the truth of the matter asserted in that statement if the

declarant testifies at the trial or hearing and is subject to cross-examination about the

statement. Erica’s prior recorded hospital interview was not under oath, and her

statement is not substantive evidence.

                        ARGUMENT AND AUTHORITIES

                         RULES OF EVIDENCE AT ISSUE

        Texas Rule of Evidence 803 provides that certain statements are not excluded

by the heresay rule even though the declarant is available as a witness.

        TRE 803(3) provides for possible admissibility of          a statement of the

declarant’s then existing state of mind, emotion, sensation, or physical condition

(such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not

including a statement of memory or belief to prove the fact remembered or believed

unless it relates to the execution, revocation, identification, or terms of declarant’s

will.

        TRE 803(4) provides for possible admissibility of statements made for

purposes of medical diagnosis or treatment and describing medical history, or past or

present symptoms, pain, or sensations, or the inception or general character of the

                                       Page 6 of 11
cause or external source thereof insofar as reasonably pertinent to diagnosis or

treatment.

                                     ANALYSIS

      The State’s first witness at trial was Longview Police Officer Trevor Yates.

2 RR 10. Minutes into his testimony the State sought to enter into evidence a “family

violence video” of a statement by Erica at the emergency room at Longview Regional

Hospital. 2 RR 13-14. Immediate objection by the defendant’s counsel - 2 RR 16 -

was overruled by the trial judge. 2 RR 16. The State specifically stated that the

purpose of admitting the video was impeachment of Erica, who had not yet testified.

The State offered no specific response to defense objection that the video was hearsay

and its admission would violate the defendant’s right to confront Erica.

      The Court watched the video at 2 RR 27, and remarked cryptically that the

proceeding was a bench trial. 2 RR 28.

      The credibility of a witness may be attacked by any party, including the party

calling the witness TRE 607. But the State’s right to impeach its own complaining

witness does not extend to employment of such impeachment as a subterfuge to get

outright inadmissable hearsay evidence before the fact finder. See Hughes v. State,

4 S.W.3d 1 (Tex.Crim.App. 1999). The State effectively threw a “skunk in the jury

box” before its only eyewitness ever testified to any facts leading to proof of an

offense. The State made no claim of surprise, and even anticipated recantation by

Erica. 2 RR 24. This trial tactic by the State is clearly questionable, and subjects a

reluctant victim to intimidation of criminal prosecution if she does not testify to suit

the State. The State should have no interest in whether Clifford Bernard Nelson is

prosecuted or convicted or aquitted. Indeed the State is charged to see that justice is

done, and not simply be an advocate. Texas Disciplinary Rule of Professional

Conduct 3.09.

                                      Page 7 of 11
                                HARMLESS ERROR

      After Gipson v. State, 844 S.W.2d 738 (Tex.Crim.App. 1992), an appellant is

entitled to have his claim of error resting on an action by a trial judge in a bench trial

treated the same as such a claim in an appeal from a conviction in a jury trial. The

appellate court must consider on the merits whether the trial court erred in admitting

the evidence. The same analysis is required as used in appeals from jury trials. If

error is found, the appellate court should consider whether the error is harmless under

Rule of Appellate Procedure 44.2(a).

      TRAP 44.2(a) provides that if the appellate record in a criminal case reveals

constitutional error that is subject to harmless error review, the court of appeals must

reverse a judgment of conviction or punishment unless the court determines beyond

a reasonable doubt that the error did not contribute to the conviction or punishment.

      In Crawford v. Washington, 541 U.S. 361 (2004) the United States Supreme

Court held that a witness’s out-of-court testimonial statement to law enforcement

officials is barred by the Confrontation Clause - even if the trial judge found it had

particularized guarantees of trustworthiness - unless the defendant had a prior

opportunity to cross examine the witness and the witness is unavailable to testify at

trial. This court on at least two occasions has held that Crawford is not applicable

if the witness testifies at trial. See Carter v. State, 150 S.W.3d 230, 241 n. 13

(Tex.App. - Texarkana 2004, no pet.) and Mumphrey v. State, 155 S.W.3d 651, 657,

n. 1 (Tex.App. - Texarkana 2005, pet. ref’d).

      At the point of offer, objection to and receipt into evidence of the emergency

room video, whether Erica would testify and what she would say was a matter of

speculation, if not anticipation. Admission of the video was error.




                                      Page 8 of 11
                             ISSUE NUMBER TWO

      Is there sufficient evidence to support the conviction in this case?



                       SUMMARY OF THE ARGUMENT

      Rigorous legal sufficiency review focuses on the quality of the evidence

presented. The evidence in this case is in conflict as to who inflicted the injuries to

Erica. If no account is given to Erica’s recorded statement, there is no overriding

evidence of guilt of Clifford of the assault as charged in the information.

                      ARGUMENT AND AUTHORITIES

      In evaluating the legal sufficiency of the charged offense, all the evidence is

reviewed in the light most favorable to the trial court’s judgment to determine

whether any rational jury could have found the essential elements of the crime beyond

a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d

859, 863 (Tex.App. - Texarkana 2010, pet. ref’d). A rigorous legal sufficiency

review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917

(Cochran, J., concurring). Legal sufficiency is examined under the direction of the

Brooks opinion, while giving deference to the responsibility of the jury “to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235

S.W.3d 772, 778 (Tex.Crim.App. 2007).

                                    ANALYSIS

      There is no suggestion in this case that Erica was not injured. The only

question is who inflicted her injuries. At 3 RR 26 the trial court alluded to a prior

case tried in her court and reviewed by this court: Winfred Warren Thomas v. State,

                                     Page 9 of 11
No. 06-13-00209-CR, slip op. April 25, 2014, 2014 Tex.App. LEXIS 4512. In

Thomas the court held that the fact finder (a jury) had the duty of determining the true

state of affairs, and evidently believed that the complaining witness told the truth at

the time of her recorded interview although she recanted her prior statement at trial.

      The evidence in this case is in conflict. The fact finder - the trial judge - is the

exclusive judge of the credibility of witnesses and of the weight to be given their

testimony, and reconciliation of conflicts in the evidence is within the exclusive

province of the trial judge. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.

2000). Some testimony may be believed and other testimony disbelieved.

      This is a classic scenario - were you telling the truth then, or are you telling the

truth now? The trial judge had the duty of determining which was the true state of

affairs and evidently believed that Erica was telling the truth at the time of her

recorded interview. Without the recorded hospital interview, the State simply had no

evidence of who committed an assault on Eric Minifield, who can hardly be

accurately described as a complaining witness at trial because she would not

incriminate Clifford Bernard Nelson in any way.

      The erroneous admission of Erica’s emergency room video had a substantial

influence on the outcome of the proceeding. See Burnett v. State, 88 S.W.3d 633,

637-38 (Tex.Crim.App. 2002). If one takes no account of the emergency room video,

there is no evidence of guilt of the offense against Erica. See Bays v. State, No. 06-

10-0045-CR, 2011 Tex.App. LEXIS 95 affirmed at 396 S.W.3d 580 (Tex.Crim.App.

2013).




                                     Page 10 of 11
                                   PRAYER

      Appellant prays that his conviction be reversed and the case remanded for a

new trial.



                                     Respectfully submitted,

                                     EBB B. MOBLEY
                                     Attorney at Law
                                     422 North Center St - Lower Level.
                                     P. O. Box 2309
                                     Longview, TX 75606
                                     Telephone: (903) 757-3331
                                     Facsimile: (903) 753-8289
                                     ebbmob@aol.com


                                     /s/ Ebb B. Mobley
                                     EBB B. MOBLEY
                                     State Bar # 14238000

                                     ATTORNEY FOR APPELLANT


                     CERTIFICATE OF COMPLIANCE

      I certify that this brief contains 2025 words according to the computer
program used to prepare the document.


                                     /s/ Ebb B. Mobley
                                     EBB B. MOBLEY



                        CERTIFICATE OF SERVICE

      A copy of this brief was provided to Zan Colson Brown, Gregg County
Assistant District Attorney, 101 East Methvin, Suite 303, Longview, Texas 75601 on
the 19th day of March, 2015, by e-file.


                                     /s/ Ebb B. Mobley
                                     EBB B. MOBLEY




                                  Page 11 of 11
