                                                                                   ACCEPTED
                                                                               06-15-00064-CR
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                         12/14/2015 5:46:56 PM
                                                                              DEBBIE AUTREY
                                                                                        CLERK

                            06-15-00064-CR

                                                             FILED IN
                                                      6th COURT OF APPEALS
JONATHAN RAY SHEPHERD               § IN THE SIXTH      TEXARKANA,
                                                     COURT     OF TEXAS
                                                      12/14/2015 5:46:56 PM
                                    §                      DEBBIE AUTREY
vs.                                 § APPEALS                  Clerk

                                    §
STATE OF TEXAS                      § TEXAS




                        APPELLANT’S BRIEF




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                   The Identities of Parties and Counsel

       Appellant is Jonathan Shepherd TDC # 01990774,
       W. J. "Jim" Estelle Unit
       264 FM 3478
       Huntsville, TX 77320-3320

       Mr. Shepherd is represented by

       Russell Wilson II
       1910 Pacific Ave #15100,
       Dallas, Texas 75201
       (469) 573-0211
       russell@russellwilsonlaw.com

       The Appellee is the State of Texas

       The State of Texas is represented by

       Upshur County District Attorney
       Billy W Byrd
       405 North Titus
       Gilmer, TX 75644
       billy.byrd@countyofupshur.com

       Assistant District Attorney
       Natalie A. Miller
       405 North Titus
       Gilmer, Texas 75644
       natalie.miller@countyofupshur.com

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                                             Table of Contents




The identities of Parties and Counsel.........................................................................2
Table of Contents .......................................................................................................3
Index of Authorities ...................................................................................................4
Statement of the Case.................................................................................................6
Statement Regarding Oral Argument ........................................................................6
Issues Presented .........................................................................................................7
Statement of Facts ......................................................................................................8
Summary of Argument ............................................................................................11


A. TRIAL COURT FAILED TO HONOR DEFENDANTS SIXTH
AMENDMENT CONFRONTATION RIGHTS WHEN IT RELIED UPON TEX.
CODE CRIM. P. 38.49 ............................................................................................12


B. REFUSAL TO GIVE LESSER INCLUDED JURY INSTRUCTION OF
FELONY MURDER ................................................................................................22


C. ADMISSION OF STATEMENT DESPITE LACK OF 38.22 WARNINGS AT
THE INITATION OF THE INTERROGATION....................................................27




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                                           Index of Authorities
Cases
.
Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). ......................... 24

Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986) ............................ 24

De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). .......................... 16

Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002). ......................... 22

Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969);
  ...................................................................................................................... 29

Fuentes v. State, 991 S.W.2d 267, 272 (Tex.Crim.App.), cert. denied, 528 U.S.
 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999)................................................. 22

Giles v. California, 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); ... 16

Green v. State, 934 S.W.2d 92, 99 (Tex.Crim.App.1996). ............................... 29

Hudson v. State 449 S.W.3rd 495 (Tex. Crim. 2014)........................................... 25

Hudson v. State, 366 S.W.3d 878, 891–92 (Tex.App.-Texarkana 2012), rev’d, 394
 S.W.3d 522 (Tex.Crim.App.2013); ................................................................. 25

Jeffley v. State, 38 S.W.3d 847, 860 (Tex.App.-Houston [14th Dist.] 2001, pet.
  ref'd) ............................................................................................................. 29

McCarty v. State, 227 S.W.3d 415, 417 (Tex.App.-Texarkana 2007), .................. 15
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Ngo v. State, 175 S.W.3d 738, 750 n. 48 (Tex.Crim.App.2005)........................ 24

Saunders v. State 913 S.W.2d 564, 569–74 (Tex.Crim.App.1995) ...................... 25

Shelby v. State, 819 S.W.2d 544, 546 (Tex.Crim.App.1991 ................................. 15
Statutes

Tex. Code Crim P. 38.49(a) ................................................................................. 20

U.S. Const. amend. VI .......................................................................................... 15

U.S. Const. amend. VI;......................................................................................... 15




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                            Statement of the Case



This is an appeal of a capital murder conviction. Appellant’s case was tried before

a jury in Upshur County Texas on or about April 15, 2015.




                   Statement Regarding Oral Argument

The appellant does not request oral argument unless the State request oral
argument.




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                           Issues Presented


   1. WHETHER TRIAL COURT VIOLATED DEFENDANT’S CONFRONTATION RIGHTS
      IN REACHING ITS CONCLUSION OF “FORFEITURE BY WRONG DOING”
      UNDER TEXAS CODE CRIM. P. 38.49.

   2. WHETHER TRIAL COURTS REFUSAL TO CHARGE JURY ON LESSER INCLUDED
      OFFENSE OF FELONY MURDER IS JUSTIFIABLE IN LIGHT OF THE EVIDENCE



   3. WHETHER DETERMINATION THAT STATE’S FAILURE TO COMPLY WITH
      PROVISIONS OF TEX CODE CRIM P. § 38.22 IS EXCUSEABLE




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                              Statement of Facts

On September 26, 2013, the appellant Jonathan Shepherd went to high school

football game to watch one of his sons play football. Jonathan brought his family

including his wife Susan Shepherd to the game. Jonathan’s son Trenton was three

years old at the time. Trenton lived with his mom Cheyanne Green. During the

game, Cheyanne let Jonathan know that she would be coming to pick up Trenton.

Jonathan agreed to meet Cheyanne in parking lot with Trenton. See States Ex. 9

At the agreed upon time, Jonathan walked Trenton to the parking lot. When he

arrived in the parking lot he saw Cheyanne’s car. Cheyanne greeted Jonathan and

Trenton and they went to Jonathan’s truck to change Trenton’s diaper. While they

were at the truck, Jonathan grabbed his glock .357 because he was concerned

that Cheyanne might try to have her brother do something to him. Jonathan

walked Cheyanne and Trenton to her car. See States Ex. 9 They placed Trenton in

the backseat of the car. Cheyanne got into the front seat of the car. Jonathan

leaned into the car and kissed Trenton good bye. As Jonathan was getting ready

to get out of the car he began having chest pain and asked Cheyanne if she knew

what a heart attack felt like. See States Ex. 9 He asked Cheyanne to take him to
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the ER. Cheyanne told him “no” and began to dial Susan’. Jonathan became upset

because Cheyanne would not take him to the hospital and felt that she was being

indifferent and he leaned over the seat with the gun and say “hey just go we need

to go now”. See States Ex. 9 Jonathan told Cheyanne to drive the car. Cheyanne

did not drive the car instead, she sat in the car telling Jonathan to put the gun

away. Cheyanne opened the door to get out of the car and Jonathan fired a shot

to get Cheyanne’s attention. Jonathan got out of the back seat and went to side of

the car where Cheyanne was on the ground and he discharged his gun in her

direction and got into his truck. See States Ex. 9

Jonathan was hysterical he called Susan and told her he had messed up and to go

and get Trenton. Jonthan told Susan that he had discharged his firearm but he

did not know if had hurt Cheyanne or not. See States Ex. 9 Jonathan drove

around thinking about committing suicide. Jonathan came to the police station

and surrendered himself. See States Ex. 9

       Jonathan was arrested Lt. Benge questioned Jonathan on video without

reading him any of the warnings required by 38.22 of Tex. Code Crim. P. After

questioning Jonathan Captain Benge spoke with the District Attorney and

informed him that he did not give Jonathan the 38.22 warnings on the video tape.

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After that Captain. Benge he retrieved Jonathan from his cell and continued his

questioning but this time he read the 38.22 warning and told Jonathan to sign the

waiver. Jonathan asked Captain. Benge “why are we having to go through this

again” and was told Well they just wanted to….




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                             Summary of Argument

       The trial court committed reversible error in at least three areas of the trial.

First, the trial court misapplied the forfeiture by wrong doing statute in violation of

the 6th Amendment. Specifically, the trial court made a finding of forfeiture by

wrongdoing without receiving any evidence at the hearing to determine whether

forfeiture by wrongdoing occurred. This resulted in the admission of otherwise

inadmissible testimonial and hearsay evidence. This is Constitutional error.

Second, the trial court failed to give the lesser included instruction of felony-

murder even though it was specifically raised by the defendant’s own statement.

Finally, the trial court committed reversible error by allowing in defendant’s

statement although he had not been given the statutory warnings under §Tex. Code

Crim. 38.22.




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   A. TRIAL COURT FAILED TO HONOR DEFENDANTS SIXTH
      AMENDMENT CONFRONTATION RIGHTS WHEN IT RELIED
      UPON TEX. CODE CRIM. P. 38.49

   The trial court denied the appellant is his Sixth Amendment confrontation rights

because the trial court believed the appellant was responsible for the death of

decedent. The Supreme Court in Giles v. California recognized “forfeiture by

wrong doing” it limited its application to situations where evidence demonstrated

that the defendant intended to prevent the decedent from testifying as opposed to

situations where a decedent is unavailable because of the defendant’s wrongful act.

       The State’s first witness was Melba Baxter. Ms. Baxter is an attorney who

represented Cheyanne Green in seeking a protective order between Ms. Green and

appellant Shepherd. See State’s Ex 2-4 The appellant objected to Ms. Baxter’s

testimony and the accompanying exhibits as violating the defendant’s

confrontation rights and constituting hearsay. See. R.R. Vol. 8, p. 26-32.


       The Court dismissed the jury and convened a hearing. At a hearing outside

of the presence of the jury, the trial court made a sua sponte finding of forfeiture by

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wrongdoing under Texas Code of Crim. Proc § 38.49. R.R. Vol . 8 p. 30, ln 22- p.

31 ln 11. No new or additional evidence was admitted at the hearing outside of the

presence of the jury and the trial court relied solely upon a previously viewed

statements of the defendant. See R.R. Vol 8 p. 31 ln 6-11 “the fact that I have

had the opportunity to review that evidence – now I can you know- I believe that

will take care of evidence that I would need to hear to make that determination,

the defendants own statement”. The statement relied upon by was offered

without objection at a pretrial hearing on a motion to suppress to determine the

admissibility of the statements 1. See R.R. Vol. 3, p.52-99. The state never

contended that either statement standing alone supported a finding of forfeiture

by wrong doing.

       The appellant objected to this procedure noting that the Court had not

heard evidence as required by Tex. Code Crim. P. § 38.49. “There’s literally been

no evidence heard so the Court is not in a position to make a preponderance

finding Beyond that I think you still have the issue of Giles in the Sixth

Amendment confrontation which the state is saying we are relying on forfeiture



1
 There were two exhibits offered at the pretrial hearing that contain statements of the defendant.
At the pretrial hearing they were admitted for the purpose of that hearing See.R.R. Vol 3, .62;
Pretrial Exhibit 5, 6
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by wrong doing” See R.R. Vol 8, p. 29 The Court granted a running objection as to

Ms. Baxter’s testimony and the exhibits she sponsored. Id. 2

        The finding of forfeiture by wrong doing destroyed the Appellant’s ability

challenge not only testimonial statements but all statements ever made by the

decedent regarding alleged past abuse. Mr. Shepherd was convicted before the

trial ever started because he was prevented from using confrontation and hearsay

objections. Thereafter, Ms. Baxter was permitted to testify and the Court

admitted the prior sworn affidavit of the decedent which was filed in an Ex Parte

Proceeding. See R.R. Vol 8, p. 37-40; State’s Exhibit 2. The affidavit was then

read by the witness.

The Court overruled the 6th Amendment confrontation objection and granted a

running objection to testimony and exhibits. Thereafter, Ms. Baxter was

permitted to testify and the Court admitted the prior sworn affidavit of the

decedent which was filed in an Ex Parte Proceeding. See R.R. Vol 8, p. 37-40;

State’s Exhibit 2. The affidavit was then read by the witness. After admission of

the testimonial affidavit in support of the protective order, the Court admitted an



2
 After Ms. Baxter testified, the running objection was expanded to include all witnesses and
exhibits. See R.R. Vol. 8, p. 87-90
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audio recording of an alleged argument between Cheyanne and Jonathan that

Ms. Baxter alleged she received from Cheyanne. See State’s Ex. 4


       The fact that a statement qualifies under a hearsay exception, such as an

excited utterance under rule of evidence 803(2), does not necessarily free it from

the strictures of the Confrontation Clause. See McCarty v. State, 227 S.W.3d 415,

417 (Tex.App.-Texarkana 2007), aff'd, 257 S.W.3d 238 (Tex.Crim.App.2008); see

also Tex.R. Evid. 803(2) (providing a hearsay exception for “[a] statement

relating to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition”). Rather, the event giving

rise to an excited utterance informs the Confrontation Clause analysis and sheds

light on the inquiry as to the statement's testimonial nature. See Wall, 184

S.W.3d at 740; McCarty, 227 S.W.3d 418;



       The Confrontation Clause guarantees the right of an accused “to be

confronted with the witnesses against him.” See U.S. Const. amend. VI; Shelby v.

State, 819 S.W.2d 544, 546 (Tex.Crim.App.1991)(en banc). This right of

confrontation is a fundamental right and is applicable to the states by virtue of

the Fourteenth Amendment. Shelby, 819 S.W.2d at 546. The primary interest
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protected under the Confrontation Clause is the right of cross-examination. See

id.

       In Crawford, the United States Supreme Court explored the parameters of

this right and concluded it was a violation of the Sixth Amendment for a court to

admit testimonial statements of a witness who did not appear at trial unless that

witness was unavailable to testify and the defendant was afforded a prior

opportunity for cross-examination. Crawford, 541 U.S. at 68; see also De La Paz v.

State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). In Crawford, the Court

explained that generally a statement should be considered “testimonial” if it

constitutes a “solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Crawford, 541 U.S. at 51. Additionally, the

Court explained that “[a]n accuser who makes a formal statement to government

officers bears testimony in a sense that a person who makes a casual remark to

an acquaintance does not.” Id.; see also Giles v. California, 554 U.S. 353, 376, 128

S.Ct. 2678, 171 L.Ed.2d 488 (2008); Davis v. State, 268 S.W.3d 683, 710

(Tex.App.-Fort Worth 2008, pet. ref'd). While the Court in Crawford declined to

provide a comprehensive definition of “testimonial” evidence, it noted that

certain classes of “core” statements are regarded as testimonial, including: ex

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parte in-court testimony or its functional equivalent—that is, material such as

affidavits, custodial examinations, prior testimony that the defendant was unable

to cross-examine, or similar pretrial statements that declarants would reasonably

expect to be used prosecutorially, ... extrajudicial statements ... contained in

formalized testimonial materials, such as affidavits, depositions, prior testimony,

or confessions, ... statements that were made under circumstances which would

lead an objective witness reasonably to believe that the statement would be

available for use at a later trial” Id. at 51–52 “Statements taken by police officers

in the course of interrogations are also testimonial under even a narrow

standard.” Id. at 52.

        The affidavit of Cheyenne Green is unquestionably testimonial because it is

sworn testimony included in an ex-parte court proceeding. See States Ex. 2

(unnumbered pages 9-10 entitled “Affidavit in Support of Ex Parte Relief”

contained within State’s Ex. 2); R.R. Vol. 8, p. 36, ln 22- p 40, ln13 (“I want to

direct your attention here to the affidavit”… signed; R.R. Vol. 8, p.41-45 (reading

of the affidavit). Along these same lines, Ms. Green’s subsequent allegations of

abuse to responding police officers are testimonial.



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The testimony of Melba Baxter and the affidavit of Cheyenne Green are

illustrative examples of the character of evidence the trial court admitted.

The jury received the following additional objectionable evidence:

   1. Testimony of Melba Baxter- decedent’s attorney who was told allegations

       of abuse by decedent

   2. Application for Protective Order including sworn affidavit of past allegations

       of abuse

   3. Testimony of Officer Racey Turner regarding responding to call and

       conversations with decedent regarding alleged past abuse- See R.R. Vol. 10,

       p, 210-214

   4. Testimony of Kathy Hedgewood, reporting an instance of alleged domestic

       violence See R.R. Vol. 10., p. 19-197

   5. Testimony of Sandra Bass Hunter reporting discussion with decedent R.R.

       Vol 10, p. 253




       The trial court erred in making a blanket finding of forfeiture by

wrongdoing for the following reasons (1) the defendant’s statement was not

legally sufficient to establish forfeiture by wrong doing because even considered
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in the light most favorable to the ruling the statement failed to establish that the

defendant acted with an intent to prevent the decedent from testifying as

required by Giles. See State Ex. 9. (2) the trial court’s method of relying on a

statement admitted in another hearing for another purpose runs afoul of due

process because the parties are entitled to notice of the purpose for which

evidence is being offered or considered (3) the trial court’s application of Tex.

Code Criminal Procedure 38.49 violates the Constitution because it allows

admission of unconfronted testimonial statements

       Appellant acknowledges that in viewing the statement one could conclude

that the appellant “wrongfully procured the unavailability of a witness” as set

forth in Tex. Code Crim P. 38.49 (a). The State of Texas thus, is in the exact same

position as the State of California in Giles. See Giles. v. California, 554 US 353,

358 (2008)(The State…. maintains…. that the Sixth Amendment did not prohibit

prosecutors from introducing the statements because an exception to the

confrontation guarantee permits the use of a witness’s unconfronted testimony if

a judge finds, as the judge did in this case, that the defendant committed a

wrongful act that rendered the witness unavailable to testify at trial)”



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The Giles court devoted attention to the exact language used in the Texas statute.

See Giles at 360-361 (discussing definition of “procure”). The Court concluded

that “the manner in which the rule was applied makes plain that unconfronted

testimony would not be admitted without a showing that the defendant intended to

prevent a witness from testifying. In cases where the evidence suggested that the

defendant had caused a person to be absent, but had not done so to prevent the

person from testifying—as in the typical murder case involving accusatorial

statements by the victim—the testimony was excluded unless it was confronted

“Id. At 361 ( emphasis added). This is the exact situation complained of to the trial

court and presented for review here. The result should be the exact same. The

reversal of the trial court’s decision.


        To the extent this Court upholds the trial court’s application of Tex Code of

Crim. 38.49, appellant challenges the Constitutionality of the statue as applied 3.

Specifically, appellant contends that application of the statute denied the defendant

his Sixth amendment confrontation rights as set forth in Giles v. California. The

plain reading of the statute abolishes Sixth Amendment confrontation protections

in any instance where any defendant bears any responsibility for the absence of the


3
  Tex. Code Crim P. §38.49 became law in 2013 but counsel has not located an interpretative decisions on the
statute.
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witness regardless of motivation. Specifically, the statute does not require a court

make any finding with respect to the defendant’s motivation.



                a) A party to a criminal case who wrongfully procures the
                unavailability of a witness or prospective witness:

                (1) may not benefit from the wrongdoing by depriving the trier of
                fact of relevant evidence and testimony; and

                (2) forfeits the party's right to object to the admissibility of
                evidence or statements based on the unavailability of the witness as
                provided by this article through forfeiture by wrongdoing.

                See Tex. Code Crim P. 38.49(a)


The threshold for the determination appears to be the lowest evidentiary threshold

known to the Texas legal system. The statute does not even require reliability of a

statement. Literally an anonymous bubble gum wrapper with “he did it” scrawled

on the inside would be enough for a determination of forfeiture by wrongdoing

under the literal wording of the statute. While the statue is silent as to what would

be required it to show a forfeiture by wrongdoing, it explicitly does away with

reliability, criminal conduct and sole intent to cause unavailability. See Tex. Code

Crim. P. § 38.49(d) Given the vast differences of opinion on matters such as which

is the best sports team in this State, it is difficult to imagine a scenario where a

statute this vaguely written could be consistently applied across the great State of


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Texas.          A state statute implementing a federal Constitutional principal can

give more but not less Constitutional protection than its federal counterpart.



                In the first place, it is to be remembered, that the general
                government is not to be charged with the whole power of making
                and administering laws. Its jurisdiction is limited to certain
                enumerated objects, which concern all the members of the
                republic, but which are not to be attained by the separate
                provisions of any. See James Madison, Federalist Paper XIV,
                1787


Because the statute’s application permitted admission of testimonial evidence

without the defendant having enjoyed the right of confrontation or the State

having demonstrated a constitutional forfeiture by wrong doing as set forth in

Giles, the application violated the appellant’s Sixth amendment rights.




   B. REFUSAL TO GIVE LESSER INCLUDED JURY INSTRUCTION OF
      FELONY MURDER

The appellant requested a jury instruction on felony murder and the trial court

denied the request. See R.R. Vol. 12, p. 148, ln17-24; p. 157-159 A two-step test

applies when assessing whether a charge on a lesser-included offense should be

given. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002). The first step


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is to determine whether the offense is actually a lesser-included offense of the

offense charged. Id. Murder is a lesser-included offense of capital murder. Id.

Felony murder is a lesser-included offense of capital murder. Fuentes v. State, 991

S.W.2d 267, 272 (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541,

145 L.Ed.2d 420 (1999). The first prong of the test is satisfied.



The second step of the test requires that the record contain some evidence that

would permit a rational jury to find that the defendant is guilty only of the lesser

offense. Feldman, 71 S.W.3d at 750. There must be some evidence from which a

rational jury could acquit the defendant of the greater offense while convicting him

of the lesser-included offense. The evidence must establish the lesser-included

offense as a valid rational alternative to the charged offense. Id. The element

distinguishing capital murder from felony murder is the intent to kill. Fuentes, 991

S.W.2d at 272. Felony murder is an unintentional murder committed in the course

of committing a felony while capital murder includes an intentional murder

committed in the course of a predicate felony offense. To be entitled to an

instruction on felony murder there must be some evidence that would permit a jury

rationally to find the defendant had the intent to commit kidnapping or attempting

kidnapping but not to cause the death of the victim.

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       The defendant’s own statement reflects that he “fired the gun but never

meant to hit her only to get her attention” See States Ex. 9, p. 5 ln 180-183 and

that upon exiting the vehicle he “fired in her direction” but couldn’t say that he

pointed the gun at her.” Id at ln 202-222; “I discharged my firearm but I don’t

know if I hurt her or not” ld ln 231 and “I didn’t mean for any of this to happen”.

See R.R. Vol 9, p. 17-20; State’s Exhibits 9 ln 281-291. These statements are

clearly consistent with an unintentional killing. This evidence easily meets the

definition of committing an act clearly dangerous to human life as set forth in

Texas Penal Code 19.02(3).

       Beyond this the evidence showed that this homicide happened on a child

exchange during a high school football game wherein the defendant was watching

a football game with his family. See States’s Ex. 9, p. 2 The defendants reason for

contacting the decedent was the exchange of their child. Id The defendant armed

himself out of fear from past threats made against him. Id. p. 3

       Having established error in the trial court's jury charge, appellant directs the

Court to past case law guiding its evaluation of the record to determine whether

appellant was harmed. Hamel v. State, 916 S.W.2d 491, 494 (Tex.Crim.App.1996)

(citing Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984)). When the

defendant raises a proper objection at trial, reversal is required if the error is

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reasonably expected to harm the defendant. Almanza, 686 S.W.2d at 171; Aguilar

v. State, 914 S.W.2d 649, 651 (Tex.App.-Texarkana 1996, no pet.). The presence

of any harm, regardless of degree, is sufficient to require reversal. Abdnor v.

State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). With no burden of proof, the

reviewing court’s determination is made simply from a review of the record. See

Warner v. State, 245 S.W.3d 458, 464 (Tex.Crim.App.2008); Ngo v. State, 175

S.W.3d 738, 750 n. 48 (Tex.Crim.App.2005). The “defendant must have suffered

‘some’ actual, rather than theoretical, harm from the error.” Arline v. State, 721

S.W.2d 348, 351 (Tex.Crim.App.1986)

         The state cited Hudson in arguing against the felony murder instruction in

this case. However, the State did not correctly advise the trial court of the ultimate

holding in Hudson4 See R.R. Vol. 12, p. 157 ln 17-25 ( state arguing :“ if the

evidence on which the defendant relies upon situates somewhere between the

charged offense and the lesser included they wouldn’t be entitled to the

lesser”)

         It is true that in evaluating harm regarding the failure to submit a lesser-

included offense the Court should take into account the existence of any lesser-



4
  Hudson’s focus is on the harm analysis of a failure to give an instruction where the defendant is entitled to the
instruction.
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included offenses that were submitted and that the jury’s rejection of submitted

lesser-included offenses could render error with respect to the unsubmitted lesser-

included offense harmless See Saunders v. State 913 S.W.2d 564, 569–74

(Tex.Crim.App.1995); See Hudson v. State, 366 S.W.3d 878, 891–92 (Tex.App.-

Texarkana 2012), rev’d, 394 S.W.3d 522 (Tex.Crim.App.2013); However that is

not the case here.

       Here, there is no intermediate offense between capital murder and murder.

Thus Hudson’s discussion is largely inapplicable because no intermediate offense

will preclude the entitlement to the felony-murder instruction nor render the failure

to give it harmless. See Hudson v. State 449 S.W.3rd 495 (Tex. Crim. 2014)

        In Hudson, the defendant did not request a felony-murder instruction.

In this case there are alternate methods of committing murder which are

necessarily distinct as defined by statute and defendant is entitled to both

instructions because they are both raised by the evidence.

       In this case, the indictment alleged capital murder with alternate methods of

committing the offense. The first paragraph alleged capital murder by attempted

kidnapping or kidnapping and the second paragraph alleged capital murder by

attempted obstruction or obstruction. See C.R. p.8. The Court’s charged contained



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both methods of committing capital murder. See C.R. p. 311. The Court’s charge

should have contained both methods of committing murder.




   C. ADMISSION OF STATEMENT DESPITE LACK OF 38.22
      WARNINGS AT THE INITATION OF THE INTERROGATION

       On January 20, 2015 the trial court conducted a pretrial hearing on the

defendant’s motion to suppress. At the hearing the State called Captain Ron Benge

to explain how he took the statements from Jonathan Shepherd. Captain Benge

testified that he had been in law enforcement since 1977 and he recalled on the day

in question that after Jonathan was brought into the police station he went to him

and read him his rights in the middle office of the patrol section and showed him

the warning and had him initial them. Benge testified that after giving Jonathan the

Miranda warnings he was asked no questions. See. R.R. Vol. 3 p. 55-. The

warning Captain Benge is describing is simply a warning contemporaneous with an

arrest. The absence of questioning contemporaneous with the warning militates

against the likelihood the one would have understood any warning to apply to any

particular questioning




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       The first interview is captured on States Pretrial Exhibit 5. With respect to

this exhibit the State stipulated that it was not admissible because it did not contain

the 38.22 warning. See R.R. Vol. 3, p. 60 “the state stipulates to the Court that

the first statement or interview of the accused or the defendant Jonathan

Shepherd would not be offered by the State during guilt/innocence phase of

these proceedings…. I want the Court to be aware that there’s two statements

involved in this case, statement number one is acknowledged and stipulated

by the states, will not be used or attempted to be used through any witness or

this video played

       The continuation of the interview appears with the midstream warnings

appears on State’s Pretrial Ex. 6 The investigating officer employed a two-step

interrogation method in question Jonathan Shepherd. Specifically, Shepherd was

not read his Miranda warnings during the first part of the interview with Captain.

Ron Benge. Captain Benge testified that upon realizing that the warnings were not

read to Shepherd, the district attorney advised him to restart the interview because

the first interview violated the law See R.R. Vol. 3, p. 79-80 . Thus, approximately

35 minutes after ending questioning of Jonathan Shepherd, Captain Benge

reinitiates the contact See R.R. Vol. 3, p. 79 . During this contact, Jonathan is told

by Captain Benge to sign his name and date of birth as opposed to being asked

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whether he would waive he his rights. See State’s Ex. #9; State’s Pretrial Exhibit

6

       Immediately Jonathan ask Captain Benege “Why we having to go through

this again” See State’s Ex. 9 5; State’s Pretrial Ex. 6. Captain Benge responds

“Just because they wanted to”. Although, Captain Benge had been told by the

District Attorney that his questioning of Jonathan broke the law, he did not inform

Jonathan truthfully when asked the question about the need to go through this

again. Thus, Jonathan did not know that the statements he made just minutes

earlier could not be used against him. In the two-step analysis this weighs heavily

against a finding that the second statement could be independent voluntarily made

because the captain provided false information about the critical question “why are

we having to go through this again”. Moreover, the notion that this is a severable

statement is simply at odds with the reality. Captain Benege and Jonathan

Shepherd make references to the prior unwarned statement. “I still have all the

other stuff about, you know –all the other information about how you-your heart

was broken and everything and I still have all that……. So we’ll just go to



5
 State’s Exhibit 9 was not used at the suppression hearing. The exhibit is a transcript of the
statement which was admitted during the trial as an exact transcription of the statement. The
statement at trial was admitted as State’s Ex. 8. Thus, State’s Pretrial Exhibit 6 and trial exhibit 8
are copies of the same statement which is transcribed in State’s Exhibit 9. The transcription is
used her convenience of the reader and writer.
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tonight… well just go to where you and (Trent) were at the ball game and ya’ll

were coming and out and just tell me what happened then” See State’s Pretrial Ex.

6 State’s Ex. 9 p.1-2 ;lns43-59

       There are a series of Supreme Court and Texas Court of Criminal Appeals

cases issues surrounding what is commonly known as a two-step interrogation

process. See Carter v. State, 309 SW 3rd 31 (Tex. Crim. App, 2010).

       In Carter, the Court of Criminal Appeals took up the question first, warn

later line of cases and addressed a variety of circumstances which occur. The

overall question in reviewing a statement is whether the totality of the

circumstances the statement is voluntary. In determining the voluntariness of a

defendant's written statement, police falsehoods are relevant. Frazier v. Cupp, 394

U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969); Green v. State, 934

S.W.2d 92, 99 (Tex.Crim.App.1996). However, “[t]rickery or deception does not

make a statement involuntary unless the method [is] calculated to produce an

untruthful confession or [is] offensive to due process.” Creager, 952 S.W.2d at

856; Jeffley v. State, 38 S.W.3d 847, 860 (Tex.App.-Houston [14th Dist.] 2001,

pet. ref'd). Indeed, the effect of a lie “must be analyzed in the context of all the

circumstances of the interrogation.” Miller v. Fenton, 796 F.2d 598, 607 (3rd

Cir.1986); accord Frazier, 394 U.S. at 737–39, 89 S.Ct. at 1424–25. In this

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case lying about the reason for the continuation for the statement brought about its

repetition and subsequent admission. This action offends the notions of due

process because it undermines the value of the warnings themselves. Thus

appellant request that this Court enter an order (1) finding that there is one

continuous statement (2) the statement did not contain the appropriate warnings

under Tex. Code Crim. P. § 38.22(3)(a)(2)(a) at the beginning of the recording as

required by Texas law (3) as result the statement is inadmissible (4) the state failed

to prove that the statement was voluntarily given.




                                      PRAYER



WHEREFORE, appellant prays that this Court upon review of this matter reverse

the judgment of the trial court for the reasons set forth herein and remand this

matter back to the trial court for reconsideration in light of this Court’s ruling.




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Respectfully submitted,

The Law Office of Russell Wilson II
1910 Pacific Ave
Dallas, TX 75201
Tel: 4695730211
Fax: 972-704-2907
E: russell@russellwilsonlaw.com


       By:/S/ Russell Wilson II____________
       Russell Wilson II
       State Bar No. 00794870
       Attorney for JONATHAN RAY SHEPHERD




                      CERTIFICATE OF COMPLIANCE

      I certify that this brief complies with Texas Rule of Appellate Procedure
9.4(2)(B) and the brief is 5,501 words in Microsoft Word 2016.


                                       S/ Russell Wilson II____________
                                      Russell Wilson II



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                         CERTIFICATE OF SERVICE

This is to certify that on December 14, 2015, a true and correct copy of the above

and foregoing document was served on the Upshur County District Attorney's

Office, by email through the efile service.



                                       S/ Russell Wilson II____________
                                      Russell Wilson II




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