                                                                                  ACCEPTED
                                                                                07-15-0075-cr
                                                                SEVENTH COURT OF APPEALS
                                                                          AMARILLO, TEXAS
                                                                        8/12/2015 1:35:02 PM
                                                                            Vivian Long, Clerk


                    No. 07-15-00075-CR

                           In The                            FILED IN
                                                      7th COURT OF APPEALS
                                                        AMARILLO, TEXAS
                Court of Appeals                      8/12/2015 1:35:02 PM

             Seventh District of Texas                     VIVIAN LONG
                                                              CLERK


                      Amarillo, Texas


                  ANTHONY FLORES,
                               Appellant,

                        ---versus---

                THE STATE OF TEXAS,
                                Appellee.


          On Appeal from Cause No. 2012-434,171
In the 364th Judicial District Court of Lubbock County, Texas
         The Honorable Brad Underwood Presiding



           APPELLANT’S REPLY BRIEF



                                       Allison Clayton
                                       State Bar No. 24059587
                                       The Law Office of Allison Clayton
                                       P.O. Box 64752
                                       Lubbock, Texas 79464
                                       (806) 773 – 6889
                                       Fax (888) 688 – 4515
                                       Allison@AllisonClaytonLaw.com

                                       Attorney for Appellant
                                          TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................i

INDEX OF AUTHORITIES........................................................................................ii

INTRODUCTION .......................................................................................................5

ARGUMENT ...............................................................................................................7

        THE ADMISSION OF TESTIMONIAL STATEMENTS AT TRIAL VIOLATED MR.
            FLORES’S RIGHT TO CONFRONT WITNESSES AGAINST HIM AND
                        CONTRIBUTED TO HIS CONVICTION

       A.        The Clerk’s Statements Were Testimonial ............................................... 3

       B.         The Testimonial Statements Contributed to
                  Mr. Flores’s Conviction ......................................................................... 8

PRAYER ......................................................................................................................10

CERTIFICATES ..........................................................................................................11




                                                           -i-
                                       INDEX OF AUTHORITIES

                                                   CASES
                                                 Federal Cases

Crawford v. Washington,
 541 U.S. 36, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) .....................................3, 4

Davis v. Washington,
 547 U.S. 813, 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006) ...................................3, 4

Michigan v. Bryant,
 562 U.S. 344, 131 S.Ct. 1143 , 179 L.Ed.2d 93 (2011) .........................................7

                                                   State Cases

Cassidy v. State,
 149 S.W.3d 712.......................................................................................................6

State v. Echendu,
  2012 WL 1130419 (Tex. App.—Dallas Apr. 5, 2012, no pet.) ............................6

Hernandez v. State,
 332 S.W.3d 664 (Tex. App.—Texarkana 2010, no pet.) .......................................8

Langham v. State,
  305 S.W.3d 568 (Tex. Crim. App. 2010) ...............................................................9

Vinson v. State,
  252 S.W.3d 336 (Tex. Crim. App. 2008) ...............................................................4

Wilson v. State,
 296 S.W.3d 140 ......................................................................................................7




                                                        - ii -
                                    INDEX OF AUTHORITIES (CONT’D)

                                     CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI ..............................................................................................3

Tex. Const. art. I.........................................................................................................3


                                                        STATE RULES

TEX. R. APP. P. 44.2(a) .................................................................................................................... 9




                                                                   - iii -
                              No. 07-15-00075-CR

                                     In The

                           Court of Appeals
                        Seventh District of Texas
                                 Amarillo, Texas


                             ANTHONY FLORES,
                                          Appellant,

                                   ---versus---

                           THE STATE OF TEXAS,
                                           Appellee.

                    On Appeal from Cause No. 2012-434,171
          In the 364th Judicial District Court of Lubbock County, Texas
                   The Honorable Brad Underwood Presiding


                     APPELLANT’S REPLY BRIEF



TO THE HONORABLE COURT OF APPEALS:

      ANTHONY FLORES, Appellant in docket number 07-15-00075-CR,

having filed his Opening Brief now submits this brief in reply to the brief

submitted by the State. Appellant requests the Court reverse the Judgment entered

in cause number 2012-434,171 out of the 364th Judicial District Court of Lubbock

County, Texas, and remand the case for further proceedings in the court below.



                                       -1-
                                INTRODUCTION

      A jury found appellant Anthony Flores guilty of robbing Lamar Johnson at

gunpoint. (6 RR 28; CR 90). Lamar testified he was about to start pumping gas

when Anthony ran up behind him brandishing what Lamar thought was a shotgun.

(5 RR 82-83, 85). Anthony took money from Lamar. (Id. 84). At trial, Lamar

testified Anthony had also tried to rob another person. (Id. 94, 158). Trial,

however, was the first time this attempted robbery was mentioned. Either way,

Anthony completes the robbery of Lamar, runs back to his car, puts the purported

shotgun back into the trunk of the car, and drives away. (Id. 94, 133, 158).

      Lamar does not immediately report the crime, as he would much rather deal

with the robber himself. (Id. 93, 98). He could not get the gas pump to work,

though. (Id. 85-86). He struggled with the pump for a while before abandoning

his aspirations of vengeance. (Id. 86). Several minutes after the robbery, the store

clerk finally called 911 to report a customer was robbed at gunpoint. (Id. 98).

      About one week later the police arrested Anthony. (5 RR 36). Anthony

confessed to the robbery. (Id. 138-39). He insisted, however, he had not used a

shotgun on Mr. Johnson. 5 RR 138-39). Rather, Anthony told police he flashed a

stick wrapped with tape and made up to resemble a gun. (Id. 139). Despite this

defense, the jury found Anthony guilty of aggravated robbery with a deadly

weapon. (CR 90).


                                        -2-
                                                ARGUMENT

     THE ADMISSION OF TESTIMONIAL STATEMENTS AT TRIAL VIOLATED MR.
         FLORES’S RIGHT TO CONFRONT WITNESSES AGAINST HIM AND
                     CONTRIBUTED TO HIS CONVICTION

                        A. The Clerk’s Statements Were Testimonial

         Testimonial statements repeated at trial by someone other than the declarant

violate a defendant’s right to confront adverse witnesses. U.S. CONST. AMEND.

VI.; TEX. CONST. art. I, § 10; Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct.

1354, 1374, 158 L.Ed.2d 177 (2004). A statement is testimonial if its “primary

purpose” is “to enable police assistance to meet an ongoing emergency.” Davis v.

Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2274, 165 L.Ed.2d 224 (2006).

         In this case, after the robbery, Anthony ran to his car, put the purported

shotgun in his trunk, and drove away. (Id. 94, 133, 158). Several minutes later,

Lamar finally reported the robbery to the clerk, who then called 911. (Id. 26, 39).

On the 911 call, the clerk gave the store’s address and reported that fifteen minutes

prior to the call a customer was robbed at gunpoint in the parking lot.1 (State’s

Exhibit 1, Recording 1, at 0:11 and 0:14). At trial, the court admitted the phone

call into evidence. (4 RR 22-23). The clerk never testified.


1
   In its brief, the State avers the time stamps on the surveillance footage indicate the phone call was actually made
six minutes after the robbery “not fifteen minutes as suggested by Appellant.” (Brief for the State, pg. 2 n. 13).
First, Appellant’s Opening Brief, maintaining absolute accuracy to the record, simply reiterated the clerk’s
statements, which was that the robbery occurred fifteen minutes prior to the phone call. (Appellant’s Opening Brief
on the Merits, pg. 10). Second, the very fact there is a dispute between what the clerk’s statements were and what
other evidence indicated only serves to further demonstrate the need for actual cross-examination of the clerk.


                                                        -3-
      In its brief, the State primarily contends the clerk’s statements were not

testimonial because they were made in the context of an ongoing emergency. The

touchstone of an “ongoing emergency” analysis is whether the declarant was

speaking about events “as they were actually happening, rather than describing

past events.”   Davis, 547 U.S. at 827, 126 S.Ct. at 2276 (internal quotation

omitted) (emphasis in original). Other factors relevant to the analysis are:

      1) whether the situation was still in progress; 2) whether the questions
      sought to determine what is presently happening as opposed to what
      has happened in the past; 3) whether the primary purpose of the
      interrogation was to render aid rather than to memorialize a possible
      crime; 4) whether the questioning was conducted in a separate room,
      away from the alleged attacker; and 5) whether the events were
      deliberately recounted in a step-by-step fashion.

Vinson v. State, 252 S.W.3d 336, 339 (Tex. Crim. App. 2008).

      The clerk’s statements were made long after the robbery occurred. The

crime was no longer in progress. See id. The robbery had happened “in the past.”

See id. When the clerk called, he was not seeking aid from the police to neutralize

a robbery or any other ongoing threat. See id. There is a very big difference

between “A customer is being robbed at gunpoint in the parking lot” and “Fifteen

minutes ago, a customer was robbed at gunpoint in the parking lot.” When the

Court listens to the 911 call, it will hear for itself – there was no ongoing

emergency. The call was to memorialize a completed crime and summon police to

the scene to investigate a completed crime.



                                         -4-
      The State avers the “ongoing” nature of the emergency was that the robber

was still at large. A fair reading of both Appellant’s and State’s brief reveals the

crux of their debate: what constitutes the “emergency” in this case. Appellant

contends (on the unique facts of this case) the emergency is limited to the actus

reus of the robbery itself. Once the robbery was completed, the emergency was

concluded. The State contends the emergency was a potentially armed robber

driving around for an undetermined amount of time after the robbery.

      The State’s reasoning is flawed; the rule created by it is unworkable. The

State first relies on the evidence Appellant tried to rob another patron before

fleeing. (“Brief for the State,” pg. 12). Evidence of a second robbery never arose

until Lamar’s testimony at trial. (5 RR 94, 158). The State, on appeal, is trying to

support its “ongoing emergency” analysis with evidence that was unheard of until

over one year after the incident.     This alleged second attempted robbery is

irrelevant to the objective determination of whether the participants that night

thought there was an ongoing emergency or a concluded robbery.

      The State likewise tries to make much of the evidence the robber brandished

a gun during the robbery. It fails to consider, however, the fact that the robber

locked the gun the trunk of his car before he drove away. (5 RR 133). Any threat

to the public and police was minimal. See Michigan v. Bryant, 562 U.S. 344, 364,

131 S.Ct. 1143, 1158-59, 179 L.Ed.2d 93 (2011).



                                        -5-
      The State likewise omits from its discussion any recognition that the robber

did not shoot or injure Lamar, factors which are traditionally included in

determining whether there is an ongoing emergency. See id., 562 U.S. at 364-65,

131 S.Ct. at 1159 (stating “[t]he medical condition of the victim is important to the

primary purpose inquiry . . .”). For example, in Michigan v. Bryant, relied heavily

upon by the State, the police came upon a mortally wounded man who indicated

his attacker had shot him “a few minutes” beforehand. In State v. Echendu, also

cited by the State, the victim called 911 stating “she was ‘bleeding everywhere’”

and asking the police to “hurry” to her aid. No. 05-11-00346-CR, 2012 WL

1130419 at *1 (Tex. App.—Dallas Apr. 5, 2012, no pet.). Again, in the Cassidy v.

State case cited by the State, the victim had been stabbed and there was “a

considerable amount of blood” at the scene.        149 S.W.3d 712, 713-14 (Tex.

App.—Austin 2004, pet. ref’d).

      Finally, the State says Appellant’s contention that the passage of several

minutes before the clerk made the phone call is highly relevant is “unfounded.”

(Brief for the State, pg. 11). This passage of time is, in fact, very relevant. It

instructs the Court not only as to whether the statement concerned an ongoing

emergency or a completed crime but it also reveals the intent and demeanor of the

declarant.




                                        -6-
      By the time the clerk made the 911 call, the robbery was over and the robber

was long gone. There was no ongoing threat. The clerk was reporting a crime had

occurred. Moreover, the demeanor of the clerk and even the victim shows neither

were under the stress of the crime at the time of the statement. This is an important

factor given the State’s reliance on Wilson v. State, 296 S.W.3d 140 (Tex. App.—

Houston [1st Dist.], pet. ref’d). In Wilson, the declarant who made the statements

was “sobbing,” “’very frightened’ and hysterical,” and “’under the stress’ of the

crime.” Id. at 146. When she saw the defendant, “seven or eight minutes” later,

she was “still weeping” when she made more statements. Id.

      This is in stark contrast to the demeanor of the declarant in the case at bar.

There was no weeping, sobbing, or hysteria involved. The clerk calmly reported

one of his customers had been robbed. There is not even any evidence that the

clerk actually saw the robbery when he made the report.

      At the end of the analysis, Appellant recognizes the Court’s analysis must be

very case-specific. With a few variations in the evidence or in the constitution of

the people involved, the statements would not be testimonial. However, on this

record with this declarant, the statement was clearly reporting a concluded crime

by a person capable of calm reflection for the purpose of initiating a police

investigation. As such, it was testimonial.




                                        -7-
   B. The Testimonial Statements Contributed to Mr. Flores’s Conviction

      Anthony confessed to robbing Lamar, but he steadfastly insisted the “gun”

he displayed was in fact a stick made up to simulate a gun. (5 RR 139). The State

was unable to directly or indirectly link Mr. Flores to any weapon. The closest the

State got was a single spent shotgun shell in the floorboard of Anthony’s car,

which Anthony was not even in at the time of the stop one week after the robbery.

(5 RR 32; 7 RR 71). A single shotgun shell of unknown size and unknown origin

does very little to support the deadly weapon element. (Brief for the State, pg. 22).

      Apart from one shotgun shell, the only other evidence on the deadly weapon

issue was the conflicting statements of Anthony and Lamar, along with the clerk’s

statement.   As detailed in Appellant’s Opening Brief on the Merits, Lamar’s

character and motivation for testifying was questionable, and his testimony on

basic facts was impeached several times over. The State questions whether Lamar

would have handed over his money had he known the gun was not real. Lamar’s

ability to, in the middle of the night, discern the gun’s authenticity has no bearing

on whether it was, in reality, a deadly weapon. See Hernandez v. State, 332

S.W.3d 664 (Tex. App.—Texarkana 2010, no pet.) (holding a toy gun was

insufficient to qualify as a deadly weapon even though the robbery victim

perceived it was real).




                                        -8-
      Besides, if Lamar’s testimony was so reliable, then why did the State insist

on admitting the clerk’s 911 call. After getting the phone call into evidence, it then

used the clerk’s statements to bolster Lamar’s recollection – all done through the

testimony of a police officer.      (4 RR 35; 5 RR 126). The prosecutor again

reminded the jury that not just Lamar had seen the shotgun. In closing arguments

he said “Even the clerk says this guy just got held up by a shotgun. Shotgun,

shotgun. Two people have now said that.” (6 RR 13) (emphasis added). Then,

again, at the end of rebuttal closing argument, the prosecutor assured the jury it

could trust Lamar’s questionable testimony because, “Then [the clerk], not Lamar,

[the clerk] is the one that calls 911. He also knew there was a shotgun.” (Id. 26).

      Clearly the prosecutor at trial thought Lamar’s testimony needed the support

of the clerk’s statements. The State’s arguments on appeal to the contrary are

belied by its obvious strategy at trial.

      At the core of this case is the State, afforded the benefit of unchallenged

eyewitness testimony versus Anthony, who was not even able to ask the clerk if he

actually saw the robbery happen. This is the very situation the Confrontation

Clause was designed to prevent.            And to make matters worse, there is a

“reasonable possibility” that admission of the 911 calls moved the jury from a state

of non-persuasion to one of persuasion on the deadly weapon issue. See Langham

v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010); TEX. R. APP. P. 44.2(a).



                                           -9-
                                   PRAYER

      Appellant Anthony Flores prays this Court would find the trial court

committed reversible error by allowing testimonial statements to establish the

deadly weapon element of the aggravated robbery charge. Mr. Flores asks the

Court to reverse the Judgment and remand the case for proceedings consistent with

the Court’s opinion.



                                               Respectfully submitted,

                                               Law Office of Allison Clayton
                                               P.O. Box 64752
                                               Lubbock, Texas 79464-4752
                                               Phone No.: (806) 773-6889
                                               Fax No.: (888) 688-4515

                                               By:
                                               Allison Clayton
                                               State Bar No. 24059587
                                               Allison@AllisonClaytonLaw.com




                                      - 10 -
                               CERTIFICATE OF SERVICE

      I certify that on August 12, 2015, a copy of this brief was served on

opposing counsel, Jeffrey S. Ford of the Lubbock County District Attorney’s

Office, via electronic mail.


                                                Allison Clayton



                          CERTIFICATE OF COMPLIANCE

      I certify the foregoing Brief on the Merits complies with Rule 9.4(i)(2)(A) of

the Texas Rules of Appellate Procedure. The brief, excluding those portions

detailed in Rule 9.4(i) of the Texas Rules of Appellate Procedure, is 2,100 words

long. I have relied upon the word count function of Microsoft Word, which is the

computer program used to prepare this document, in making this representation.


                                                Allison Clayton




                                       - 11 -
