. de … ac
1|5

m °` 9 196 STATEMENT 0F THE cASE
"fe)A ei<, p‘£;{as
DmbnpRLl%in h§%s tried before a Judge and where he was found guilty
of indecency with a child by sexual contact, and Sentenced to Seven
years in the Texas Department of Criminal Justice- Institutional
iDiviSion. Appellant challenges the Judges findings, alleging Fi§at
DIN

they were in error, and that he is actually innocent of &hékamcn&@%ems
S'Xth Distn`ct

N°V.3 0 2015

offense,

7éXar 3 ~.
isSUEs PRESENTED 19 9@@% K}§§F P?§@
_ ' f'°€¥, @liank
11 .Whébher the Judge erred .in considering dates not listed on
the indictment, thus not giving Appellant notice of the allegation
that the State intends to prosecute against him so that he can pre-

pare a proper defense.

2. Whether the Judge erred in finding part of the witness testimony

true, and another part untrue.

3. -Whether the Judge should have required the victim (accuser) to
be evaluated by a professional for a competent Screening.
4_ .Actual lnnocence claim by Appellant.

STATEMENT:OF FACTS
On Sepetember 30, 2013 Appellant was arrested by the Rusk County
, §ans Sheriff' s on a warrent from Gregg County,Texas for indencency

with a child by sexual contact that was to have occured on September

29, 2012.

The same day he was transfered to the Gregg County jail, where
he remained until trial. v

Prior to Appellant's arrest the Gregg CountyGrand Jury issued
a true bill indictment against him on the 8th day of August. 2013,
alleging that he committed indecency with a child by sexual contact
`against Jane Doe 07192003, that occured on the 29th day of September,
2012. l

_On the 9th day of January, 2014 the district attorney filed two
motions for Notice of Intent to use Hearsay Statement of a Child Abuse
Victim, summonsing Brian Splawn, the victimls father, and Kelli Faussett,
Child.Advocacy Service advocate to testify to EXACTLY what the victim
told them. The Motions were granted the same day.

\September 26, 2014 Appellant was taken to Court for a Waiver of
Jury Trial. Trial was set for December 1,2014.

v OH December 1, 2014 all parties appeared and anounced ready. The
witnesses, were sworn in and the trial began on that day.

The first witness to take the stand was Erin Splawn, the victim.

The second witness was Faith Splawn, the victim's sister.

The third witness was Brian Splawn, the victim's father.

The fourth was Jason Romine, the Kilgore police officer who took
the complaint.

The fifth was Barbara Tidwell, Appellant's sister.

The sixth was Kay Lynn Newbill; Detective for the Kilgore Police
Department, who refered the case to child protective services and the
child advocacy service. 4 7

The seventh was Bobby Clark.Jr. Appellant. who testified that

he is innocent.

The eighth was Reshonda Clark, who is Appellant's daughter.

The Judge finds Appellant guilty specifying that the victim gave
creditable testimony, and never gave a specific date, and that he-
does not believe the date is the controlling isuue, but had the victim
gave a specific date that may have gave the Court more concern.

The punishment phase is set for the 21st day of 2015.

Appellant was sentenced to 7 years in the Texas Department of
Criminal Justice and Ordered to register as a Sex offender.

Appellant was given permission to appeal.

Appellant requested an extension after his Court appointed appeals
counsel filed an Anders Brief.

Permission was granted, giving him until November 17, 2015.

SUMMARY OF THE ARGUMENT

The Trial Judge erred in alleging that the date as stated in the
indictment was not a controlling issue,and of little importance to
the merits of the prosecution of the case. Every element alleged in
an indictment must be proven, and every element alleged is exactly
what is given as notice to an accused person prior to any trial, so
that the person may attempt to locate witnesses and any evidence to
help with his defense{ To give notice to Appellant about what evidence
is to be used against him, then change the allegation AFTER trial begins
is clearly a denial of proper notice, and a violation of due process
of law.

lt was not discretionary for the Trial Judge to decide if a witness
testified truthfully in one party yet gave untrue (unreliable) testimony
in another part, when in fact both parts represent key elements of the

Off€HS€ and mUSt COrr©borate the other to find guilt. Meaning one part

can not be proven without the .Other, when the witness was the person who
filed the police report alleging THE both parts are true, and this
same evidence was used to seek the indictment and sustain the conv-
iction in the matter.

Because of the serious nature of the offense, and the child's
age of 9 years old, it is questionable as to why the Trial Judge
failed to have the child examined by a trained professional, whose
an expert in determining the competency of a child under the age of
13, and whether the child has a history of delusional daydreams, or
fabricates stories for attention and sympathy.

When the allegation against an adult has been made by a child
for some type of sexual misconduct,although there need be no corrob-
ation but the child's allegation, there still must be some evidence
to sustain a conviction, and not just the assumption of what the child
thinks is a sexual violation against her. For this same child to spec-
ulate what she think was inappropriate, while at the same time giving
unreliable time accounts of the incident in question, just because

she does not like the person, is not enough evidence to convict.

~ARGUMENT & AUTHORITIES

ISSUE'ONE:

Appellant was given notice that he is being accused of indecency
with a child by sexual contact that occured on September 29, 2012.

On December 1, 2014 Appellant appeared in Court ready for trial,
except he had with him proof that there is no way he committed the

offense because he was in the hospital, and that was his affirmative

defense, a secured alibi. He needed not prepare any futher, because

4

he had met his burden of innocence to the allegations as stated in

the indictment.

When the prosecutor discovered that Appellant was in the hospital,
and there was no way he could have committed the crime, she began argu-
ing that the date in the indictment was irrelevant and did not matter,
that all she needed to prove was that the crime was committed before
indictment and before prosecution was barred by limitations. Alleging
that_the date in the indictment has no merit to the claim, and it did
not matter that Appellant was given that date in preparation to defend
himself.

The Courts are bound by law, and have no authority to vaguely
abuse nondiscretionary matters, as stated in Art. 21.02.(6), Tx.C.C.P..
See:TMiréles.V. State, 901 S.W. 2d 458,465 (Tex. Crim. App. 1995)....
LTjhe.qughgzdm@ination of lawyers and Judges has come to embrace the
myth that pleading 'on or about' magically avoids the necessity of
proving a specific date. But no such incantation [isj necessary. Plead-
ing that an offense was committed 'on' a particular date will perform
ithe same magic".

The Texas Legislature never intended for such an abuse of discret-
ion by a prosecutor. A prosecutor can not give notice of one particular
date, then merely disregard proper notice by stating a new date , then
allege no harm done. This making any requirement for notice obsolete.
Why even put a date if the date is optional? Because the accused must
be able to adequately prepare a defense against the allegation(s).

September 29, 2012 was clearly the date alleged on the indictment
, and that was the date Appellant prepared his defense around.

On direct examination of Jason Romine, a Kilgore police officer;

who took the complaint of Brian Splawn, confirmed that the allegation

was to have occured on September 29, 2012, Vol.3,pg.56, at15-21, and
vthis:.<€l~a'd::e was written in his police report, Vol.3, pg.57, at 3-7, and
again confirms the date, Vol. 3, pg.58, at 2-7.

v After the prosecutor told Brian Splawn, the State's key witness,
that there's no way Appellant could have committed the offense on
September 29, 2012 because he was in the hospital, Mr. Splawn changed
the date to September 22,2012, while testifying on the witness stand,
and gave an affirmative "YES!" to the new date as being the date, Vol.
3, pg.54, at 5-10. d

Although Appellant was not given notice of September 22,2012 as
the new date of offense, he was still able to prove that he was not
at the residence at the time the victim said the offense occured against
her. This is Supported by the State'$ witness;ssabbaraliidwell.

Barbara Tidwell not only confirmed that not only was it impossible
rfor appellant to have been at her residence<nuthe 29th or the 22nd
_, he was not there on the 15th either, all the saturdays leading upt.
to the allegation, Vol. 3, pg. 68 at 17-24, pg.69, at 22-25, and pg.70,
at 1-8. . '

Roshonda Clark also testified to the where abouts of Applicant
for the dates of the l§th, 22nd, and the 29th, Vol. 3, pgs 97-98, at
1-18. All secured alibis. n

Appellant was not given proper notice of the allegations as alle-
ged in the indictment, and the state failed to meet its burden of proof
as it. alleged in the information in the indictment. Appellant'S case

should be reversed and ACQUITTAL, or remanded for a new trial.

ISSUE TWO:

ln the closing arguments appellant's attorney explained to the

 

Trial Judge the importance of actual dates, and what the purpose of

what "on or about" was actually designed for, and it does not apply
in this case, Vol.3, pgs. 105-112. The state can not hide behind

"on or about", when Appellant produced a solid alibi, proving that
there's no way he could have committed the offense because he was in
the hospital. Supra: Mireles.

ln the prosecutorhs closing arguments, she alleges that after
it was discovered that Appellant was in the hospital on September 29,
2012, that Brian Splawn merely guessed at that date, Vol§3, pg 114,
at 14-17, 25-25.

The State Confirms that the allegation did not happen in_July
or August, that it did happen in September, and on a weekend, Vol.3,
pg. 115, at 9-13. '

The prosecutor argues that the date is no big deal, when in
fact it is extremely important, Vol.3, pg.116, at 2-3; If Appellant
was able to prove that he was in fact at another place at the time
of the alleged offense, it proves that the accuser made a false
allegation.

The prosecutor ai;egedithat the State is entitled to leniency
because it is a child victim, Volt3, pg.116, at 3-5. This is exactly
what Appellant has been trying to explain to the Trial Judge. Brian
Splawn's testimony is just as important as the victims because he
knew exactly when he took her to the grandmother's house, and he
specifically told the police that it was September 29,2012, that is
until it was discovered that Appellant was in the hospital. Actually
Mr. Splawnls testimony should be more effective and reliable than
Erin Splain's because she is a 9 year old child. Mr. Splawn has a

duty as the child's father to always know where she is at, and he

 

confirmed his responsibility as a father should when he filed his
Complaint with the Kilgore police department, varifying that September
29, 2012 was in fact the date that he delivered his daughter to her
grandmother's house, and this was the only day that the offense could
have occured; not-fhe?l§th, not the 22nd, but the 29th. Since the
Whole case revolvediaround Mr. Splawn's complaint,and time,the dudge
erredih:his décision,stating that the date given by Mr. Splawn was`
irrelevant, and that the vietim:never gave a specific date, Vol,3,

pg. 120, at 3-5.

»Yet, the Judge does State that had the victim gave a specific
date , that it may have caused the Court more concern about the alleged
change of the date, v01.3, pg.lzo, et 7-8. Then he emth that he
believes the date is not a controlling issue, Vol.3, pg120, at 9-10.

The date is a very critical piece of evidence,~and was detrim-
ental to the State's case against Appellant. Brian Splawn's testimony
, and allegation of September 29,2012, was a specific date, that was'
until he discovered Appellant was in the hospital, and was extremely
realiable, when Mr. Splawn was the first person that the victim cried
out to, satisfying art. 38.072.;TCCP, and was very accurate. The
allegation was only a couple weeks old, and Mr. Splawn knew exactly
when the victim was at her granmother's house, and when she was not.

What happened was the child made a false allegation that clearly
escalated out of control, and when the allegation could not be supported
becausettheAppellant was not even there, rather than concede to the
false allegation, the father merely changed what he told the police
in order to protect his daughter's integrity. Mr. Splawn Knew that
his daughter told him that it happened the weekend of the 29th, but

she did not think the allegation would get so far out of control.

 

He knew that was the weekend that he took his daughter to the grand-
mother'S house, Yes, Mr Splawn's statement that he told the police

, giving the 29th as the date of the alleged offense should have
caused the Court great concern, and the changes of that date should
not have been ignored, and dismissed as hearsay. The Texas Rules of
Evidence ansi very clear , Rule 801. (e), (1)(d), a statement is
not hearsay if it is taken in accordance with art. 38.071., TCCP.;

For the Judge to take into consideration one part of Brian Splawn's
testimony as reliable but the other part as hearsay, is clearly an

abuse of discretion, and that testimony was reliable.

ISSUE THREE:

Because of the serious allegation made by the victim, whose a
9 year old child at the time of the accused offense, the Judge had
a duty to have her examined for competence before testifying at the
trial, Tex. Rules of Evidence 601(2). The victimls father even test-
ified that he told the police that his daughter needed to be questioned
by a professional, someone that knew what they were doing, because
it can be bad for Appellant, Vol.3, pg.53, at_12-17. Appellant believes
that had an expert examined the victim (someone that knows how to
question the child) and explained the consequences for the Appellant,
that she would have revealed the truth, that the allegation is false

and was made up for attention.

ISSUE FOUR:
Appellant alleges that the evidence was insufficent to sustain
the conviction against him. lt is well established that the victim,

her father, and the prosecutor alleged the offense occured on a week-

end hiSeptamxa'of 2012, on 15th, 22nd, or the 29th. Yet, when Appellant
presentedsecured alibis for ALL these dates, the State claims that

all they have to prove is that it occured before indictment, and prior
to the bar of limitation, and state that "on or about" givestbhem
authority. If this is the case why even put a date? Possibly the

Texas Legislature need to amend and repeal art. 2102.6, stating before
indictment (no date required) and prior to the bar of limitations.

'The state's fictional theory that the date alleged on the indi-
ctment is not required is without merit. Appellant was given notice
of that date,and that was the evidence the State intended to use
against him in the prosecution of the case. Appellant proved beyond
ALL facts that he was wrongfully accused, and is innocent. The State
had no jurisdiction to amend the indictment, attempting to allege
new and different dates, and even though the indictment was not phys-
ically altered (amended) on its face it was clearly amended after
the trial started, orally and on the records of the Court;

Appellantialléges that sometime in August of 2012, the he disci-
plined the victim, which caused her to become vindictive. Vol.3, pg.
85, at 8-15.

Appellant testified that he never touched the victim inappropr-
iately, Vol.3, pg.86, at 10-12.

Appellant also testifies that he was not at the residence where
the allegedimcident was to have occured on either the 29th, 22nd, or
the 15th, possibly the 8th.

Not only did the victim make impossibly date(s) as allegations
of the incident, that can't be supported by Appellant's alibis, but
she does not even know what she is alleging. Specifically she said

that Appellant touched her more than one time, Vol.3, Pg.15, at18-16.

10

 

She then alleges that Appellant would pick her up and put her

on his shoulders, touching her front and back, and made her ride
in the middle of a little hoveround when she didn’t want to§¢Vol.3,
pg.15, at 21-25.

She testified that the incident happened sometime in September
,2012, Vol.3, pg. 16, at 13-23.

She testifies that Appellant first put her on the couch, Vol.3,
pg. 16, at 25, pg.17} at 1.

She testified that all Appellant did was pat her on the front
and back, nothing more (no cupping, rubbing, or fondlings), Vol.3
, pg.17, at 7-9. See: Means v State; 955 S.W. 2d 686,691(Tex. App.

- Amarillo 1997) " lt cannot be said that touching Dwithout intent

to arouse gratify the sexual desire of any person] occures if the
touching is accidental ...... So, the act of accidental touching const-
itutes no evidence that appellant touched Lalleged victimj with intent
to arouse or gratify sexual desire." See also: Castillo v State, 771
S.W. 2d 239, 240j41 (Tex. App.-SanAntonio 1989).

The victim clearly does not have the slightest idea what a good
or bad touch is, or the meaning of inappropriate touching actually
is. She thoughtthat a mere pat on the back was rape, Vol;3,pg.45,at
15, and then alleged that Appellant held her is all,Vol.3pg.41, at
16-20;

The prosecutor clearly changed the whole story of events, as
alleged by the victim, by leading the victim, suggesting her theory
of what took place instead of letting the child explain in detail
what she thought was inappropriate. What was initially a friendly
pat, stated_by the victim, became a rub, then a cupping, then a pull-

ingion top by the Appellant, all of which was suggested by the prose-

11

 

cution. The prosecutor took the child of 11 years old and ledF her

all the way through the childs testimony, clearly helping show cause
for conviction, when in fact there was no cause to support the child's
allegations alone.

The victim, who was 9 years old at the time, thought she had
every reason to fabricate a story against Appellant, and this is`
supported by the record. She claims she does not like the Appellant
Vol.3; pg.23, at 4-5. She claims that she is uncomfortable with Appe-
llant because he is disrespectful to her Grandy (grandmother), and
is rude, Vol;3, pg.23, at 9-11.

Claimed Appellant never showed her a lot of attention, Vol.3,
pg.23, at 12-14.

When asked did appellant ever kiss her, victim responded "He
probably kissed me on the forehead a long time agov. Vol.3, pg.23,
atlB?Zl. A friendly kiss on the forehead by Appellant, who is‘a rel-
ative, does not show cause to support sexual misconduct.

After all the testimony, that was actually created by the pros-
ecutor, claiming that Appellant picked her up, hugged her, and held
her(inappropriatly), the victim claims that Appellant never did any

of these things, by answering "huh-uh", NO!, Vol.3, pg.24, at 1-5.
The victim testified that Appellant would give her a ride on

a Hoveround, trying to run over a chicken; playing with her as a'

child, Vol.3, pg.24, at 8-11, and said he never tried to touch her

while riding the hoveround, Vol.3, pg.24, at 14-15. ( A hoveround is

a electric wheel chair, and the only place to sit is in the middle

5 up fronty'and does not consis:t of attempted inappropiate sexual

misconduct), The child was 9 years old at the time and it was merely

an innocent ride given by an uncle to his niece.

12

 

On cross examination of the victim, she testifies that no longer
than a month had passed before she told her father about the alleged
incident.

At the punishment phase of Appellant, before sentencing him to
7 years in prison, the Judge said "While the offense itself is not
the worst indecency¢with-a-child case this Court has ever heard",
Vol.3, 5, pg.12, at 5-6. The reason the Trial Judge said this is
because it never happened. The State failed to give proper notice as
alleged in the indictment, clearly prejudicing Appellant's defense,

and did not meet its burden of proof, under sec.21.11., of the Texas

Penal code. The whole trial proceeding was a miscarriage-of-justice.
The victim gave ambiguous and arbitrary-testimony, claiming one
thing happened,then denying the same allegation in another part ofv
her testimony. n
The State must meet its burden of proof under the Texas Penal
Code, sect 201., See: Johnson v State, 673 S.W. 2d 190,194(Tex.Crim;
App. 1984)"[l]tiis incumbent on the State to prove every element of

the offense beyond a reasonable doubt" See also: Peddicord V. State

, 942 S.W.Zd 100,103 (Tex. App.-Amarillo 1997).

What the State prosecutor has done was take a 11 year old child's
testimony, who does not actually know right from wrong, twist the
facts from actual events, that are respectful and innocent, and
created false assertions of fact, only to secure a wrongful convition.
The truth is in the transcript. Appellant never inappropriatly touched
the victim, other than what is expected out of any other adult. Thé
State failed in its totality to meet its burden of proof, because
there is no proof there, nothing!'

For these reasons Appellant ask this Cout to reverse his convi-

Cthn) add order an acquittal, exonorating him.

13

 

CERTlFlCATE OF COMPLIANCE AND DELlVERY

This is to certify that this document, is filed in accordance
to Rule 9.5. (e), of the Texas Rules of Appellate Procedures, by
placing the same in_the United States Mail, postage prepaid,addressed
to the Sixth Court of Appeals, Bi-State Building, 100 N. State Line
Avenue, Ste.20, Texarkana, Texas 75501 and to the District Clerk
of Gregg County, 101 E. Methvin Street, Longview, Texas 75601, service

accomplished on the 11th day of November, 2015.

 
   

Bobby Eugene Clark, Jr.
Appellant

15

 

PRAYER

WHEREFORE, PREMISES CONSlDERED, Appellant prays that this
Honorable Court appoint him counsel, and set for submission a
date for oral argument. lf the Court is to submit the case without
an oral argument, that it find that Appellant's rights under the
Texas and United States Constitutions were violated, as well as
Texas statutory_laws, and that it should reverse Appellant's con-
viction, and Order acquittal, or in the alternative reverse and
remand for a new trial, thus giving Appellant a fair opportunity
to proper notice ( the dates ) so that he can prepare his defense,

or any other relief the Court deem necessary and proper.

ectf lly Subm' fed

YS;P
,/

Bobby Eugene Cla

     
    

14

