                                                                                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
