                                                                      ACCEPTED
                                                                  06-14-00174-CR
                                                       SIXTH COURT OF APPEALS
                                                             TEXARKANA, TEXAS
                                                            5/15/2015 11:23:29 AM
                                                                 DEBBIE AUTREY
                                                                           CLERK

                      06-14-00174-CR

                                               FILED IN
                                        6th
           IN THE COURT OF APPEALS FOR THE  COURT  OF APPEALS
                                          TEXARKANA, TEXAS
                                        5/15/2015 11:23:29 AM
          SIXTH APPELLATE DISTRICT OF TEXASDEBBIE AUTREY
                                                 Clerk
                   TEXARKANA, TEXAS

       ___________________________________

         RODERICK BEHAM,
                                         Appellant

         v.

         STATE OF TEXAS,
                                  Appellee
        __________________________________

               BRIEF FOR APPELLANT
       ___________________________________


          APPEAL FROM THE 5th DISTRICT COURT
                BOWIE COUNTY, TEXAS

               Trial Court No. 14 F 0004 005


ORAL ARGUMENT IS REQUESTED

Garrett Smith                       Alwin A. Smith
SBN: 24088426                       SBN: 18532200
1616 Falcon Ridge Blvd              602 Pine Street
Friendswood, Texas 77546            Texarkana, Texas 75501
                                    903-792-1608
                                    903-792-0899 Fax
garrett_smith1@yahoo.com            al@alwinsmith.com
                                    Attorney for Appellant
                 IDENTITY OF PARTIES AND COUNSEL


     Pursuant to TEX. R. APP. P. 38.1(a) (2005), the parties to this suit are as

follows:

1.   Roderick Beham is the Appellant and was the Defendant in trial

court.

2.   The State of Texas, by and through the Bowie County Criminal

     District Attorney’s Office, 601 Main Street, Texarkana, Texas, is the

     Appellee and prosecuted this case in the trial court.



     The trial attorneys were as follows:

1.   Roderick Beham was represented by Chad Crowl.

2.   The State of Texas was represented by Jerry D. Rochelle, District

     Attorney and Samantha Oglesby, Assistant District Attorney.



         The appellate attorney is as follows:

1.   Roderick Beham is represented by Alwin A. Smith, 602 Pine Street,

     Texarkana, Texas 75501.

2.   The State of Texas is represented by Jerry D. Rochelle, District

     Attorney, 601 Main Street, Texarkana, Texas 75501.


                                        ii
                         TABLE OF CONTENTS

                                                                   Page

Identity of Parties and Counsel         . . . . . . . . . . . . . . . ii

Table of Contents                       . . . . . . . . . . . . . . . iii

Index of Authorities                    . . . . . . . . . . . . . . . iv

Statement of the Case                   ...............1

Issues Presented                        ...............2

Statement of Facts                      ...............3

Summary of the Argument                 ...............5

Argument and Authorities                ...............7

      Issue No. 1:                      ...............7

      Issue No. 2:                      ...............7

      Issue No. 3:                      . . . . . . . . . . . . . . . 16

      Issue No. 4:                      . . . . . . . . . . . . . . . 23

      Issue No. 5:                      . . . . . . . . . . . . . . . 23

Conclusion                              . . . . . . . . . . . . . . . 35

Certificate of Service                  . . . . . . . . . . . . . . . 36




                                  iii
                          INDEX OF AUTHORITIES

Cases                                                                               Page

Alford v. United States, 282 U.S. 687 (1931)          . . . . . . . . . . . . . . . 16, 20, 21

Bell v. State, 724 S.W.2d 780, 781 (Tex.Crim.App.
      1986)                                   . . . . . . . . . . . . . . . 31

Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). . . . 15

Cross v. State, 144 S.W.3d 521, 529 (2004)            . . . . . . . . . . . . . . . 11

Davis v. Alaska, 415 U.S. 308 (1974)                  . . . . . . . . . . . . . . . 16, 17, 18
                                                                                    21

Davis v. United States, 512 U.S. 452, 459 (1994).. . . . . . . . . . . . . 12

Dinkins v. State, 894 S.W.2d 330, 350-51 (Tex. Crim.
      App. 1995)                             . . . . . . . . . . . . . . . 11

Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim.
    App. 1996)                                . . . . . . . . . . . . . . . 10, 13

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). . . . . . . . . . . . . 11, 12

Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.
      1999)                                   . . . . . . . . . . . . . . . 24, 25, 27
                                                                            28

Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App.
     1996                                     . . . . . . . . . . . . . . . 23

Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim.
    App. 1997)                              ................ 7

Haley v. State, 173 S.W.3d 510, 514 (Tex.Crim.App.
     2005)                                    . . . . . . . . . . . . . . . . 24, 27, 32


                                           iv
Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App.
     1994)                                    . . . . . . . . . . . . . . . . 24, 28

Hearne v. State, 534 S.W.2d 703 (Tex. Crim. App. 1976). . . . . . . . 10

Huizar v. State, 12 S.W.3d 479 at 481 (Tex.Crim.App.
     2000)                                    . . . . . . . . . . . . . . . . 27

Hutchison v. State, 424 S.W.3d 164, 182 (Tex. App.
     —Texarkana 2014)                         . . . . . . . . . . . . . . . . 15

Johnson v. State, 433 S.W.3d 546, 555 (Tex.Crim.App. 2014).. . . 21

Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993).. . . . . 16

McCarthy v. State, 65 S.W.3d 47, 51 (Tex. Crim. App. 2001).. . . . 11, 15

Mendiola v. State, 21 S.W.3d 282 (Tex.Crim.App. 2000).. . . . . . . 32

Miranda v. Arizona, 384 U.S. 436, 473-474 (1966). . . . . . . . . . . . 10, 11, 12,
                                                                        13

Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.
     1996)                                    . . . . . . . . . . . . . . . . 25

Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim.
  App. 1990)                               . . . . . . . . . . . . . . . . 24, 29, 30

Ochoa v. State, 573 S.W.2d 796, 801 (Tex. Crim. App. 1978). . . . . 14

Simmons v. State, 548 S.W.2d 386, 388 (Tex. Crim. App.
    1977)                                   . . . . . . . . . . . . . . . . 16, 18, 19
                                                                            21

Spain v. State, 585 S.W.2d 705, 710 (Tex.Crim.App. 1979). . . . . . 16, 20, 21

State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). . . . . . 7



                                            v
Taylor v. State, 995 S.W.2d 279, 283 (Tex. App. - Texarkana
     1999, pet. granted)                     . . . . . . . . . . . . . . . . 23

Wheeler v. State, 67 S.W.3d 870 (Tex.Crim.App. 2002).. . . . . . . . 26, 28, 29


Statutes/Rules


Texas Code of Criminal Procedure, Article 37.07 §3(a)(1).. . . . . . . 24, 26, 27,
                                                                       28

Texas Code of Criminal Procedure, Article 38.03. . . . . . . . . . . . . . 31

Texas Rules of Appellate Procedure 11                 . . . . . . . . . . . . . . . . 32

Texas Rules of Appellate Procedure 44.2               . . . . . . . . . . . . . . . . 32

Texas Rules of Evidence 613(b)                        . . . . . . . . . . . . . . . . 20, 21

Texas Rules of Evidence 402                           . . . . . . . . . . . . . . . . 27

Texas Rules of Evidence 403                           . . . . . . . . . . . . . . . . 26, 28, 29




                                           vi
                       STATEMENT OF THE CASE


      This is an appeal of a criminal case wherein the Appellant was indicted

for the offense of Aggravated Robbery by a Bowie County Grand Jury on June

26, 2014. C.R., pg. 19. The Appellant was arraigned on July 14, 2014, wherein

he pled not guilty. C.R., pg. 13. On August 26, 2014, a jury was selected in the

Appellant’s case. C.R., pg. 13-4. The jury trial in the Appellant’s case began on

August 27, 2014, and was concluded on August 28, 2014. C.R., pg. 14. The jury

found the Appellant guilty of the charge of Aggravated Robbery on August 28,

2014, and on August 29, 2014, after hearing additional evidence assessed the

Appellant’s punishment at Twenty-Five years in the Institutional Division of

the Texas Department of Criminal Justice. C.R., pg. 15.



           STATEMENT REGARDING ORAL ARGUMENT


      Counsel for Appellant does believe that oral argument is necessary for

the Court to make a ruling in this matter.




                                        1
                         ISSUES PRESENTED

Appellant’s First Issue on Appeal:

     Appellant was denied his Fifth Amendment right to remain silent
     when the trial court failed to suppress a statement given to police
     where Appellant invoked his right to remain silent which was not
     scrupulously honored.

Appellant’s Second Issue on Appeal

     Appellant was denied his Sixth Amendment right to counsel when
     the trial court failed to suppress a confession where Appellant
     invoked his right to counsel which was not scrupulously honored.


Appellant’s Third Issue on Appeal

     Appellant was denied his Sixth Amendment right to confront the
     witnesses against him when the trial court refused to allow
     Appellant’s counsel to present admissible evidence demonstrating
     bias of a State’s witness.


Appellant’s Fourth Issue on Appeal

     The trial court abused its discretion as a matter of law by
     admitting evidence of extraneous offenses during the punishment
     phase without an initial finding of reasonable doubt as required
     by Article 37.07§ 3(a)(1) of the Texas Code of Criminal Procedure.

Appellant’s Fifth Issue on Appeal

     The trial court abused its discretion by admitting extraneous
     offense evidence during the punishment phase whose probative
     value was substantially outweighed by its unfair prejudice in so
     much as it invited the jury to assess Beham’s punishment based
     on an emotional or moral basis.


                                     2
                            STATEMENT OF FACTS

      On the 22nd of December of 2013, an aggravated robbery occurred at the

Country Inn Suites, located in Texarkana Texas. Vol. 4, pg. 19. At the time the

clerk was alone and observed a female come into the lobby around 10:30 p.m.,

who asked to use the bathroom. Vol. 4, pg. 87. About ten minutes later two

males entered the lobby wearing bandanas on their faces. Vol. 4, pg. 90. One

of the males demands a key to the safe and when he is told that the clerk

doesn’t have it, he goes into a back room and takes the clerk’s purse and the

two flee. Vol. 4, pg. 91.

      Later in the early morning hours of December 23, 2013, a female and a

male enter the Ashdown, Arkansas Wal-mart. Vol. 4, pg. 36. The female had

in her possession a wallet that appeared to belong to the clerk who was

robbed, and attempted to use a gift card. Vol. 4, pg. 37-8. The police were able

to develop Arneisha Hall as the suspect who was the female at the Ashdown

Wal-mart store. When confronted she confessed to being the female at the

motel and in the video at Wal-mart. She further stated that Appellant was the

one with the gun at the motel and that he was the one with her at the Ashdown

Wal-mart. Vol. 4, pgs. 43-50.

      On December 28, 2013, the Appellant was arrested by the Ashdown



                                       3
Arkansas Police Department for possession of stolen property after being

alerted by the Texarkana Police Department to be on the lookout for the

Appellant. Vol. 4, pgs. 66-7.

      During an interview while being held in Ashdown, Arkansas, after

informing the detective that he wanted a lawyer, the Appellant made

statements that incriminated him in the robbery. Vol. 4., pgs. 68-71.




                                     4
                      SUMMARY OF ARGUMENT


     The trial court repeatedly misinterpreted constitutional law as well as

the Texas Rules of evidence and procedure and abused its discretion, leading

to Roderick Beham being denied a fair trial. Mr. Beham was convicted of

armed robbery because he was denied his rights to remain silent and to

counsel during police interrogation and his right to cross-examine witnesses

at trial. He was then excessively punished when the trial court allowed

inadmissible extraneous offense evidence during punishment.

     The trial court acknowledged that Mr. Beham requested a lawyer when

given his Miranda warnings but failed to suppress the statement resulting

when his request was not scrupulously honored by police. Prior to trial,

defense counsel properly filed a motion to suppress the statement, arguing

that Mr. Beham invoked his right to remain silent and his right to counsel.

Inexplicably, during the suppression hearing, the trial court refused to

suppress the confession because it found that the confession was voluntary.

Per Edwards v. Arizona, once a suspect has unambiguously invoked his right

to counsel, police must cease the interrogation.

     During trial, Mr. Beham was denied his right to cross examine the

witnesses against him when the trial court would not allow defense counsel to


                                      5
introduce bias evidence against a key witness for the State. Arneisha Hall

testified as an accomplice during the State’s case-in-chief. When defense

counsel sought to introduce evidence that demonstrated Hall’s bias, the state

objected. Using the improper rule, the trial court denied Mr. Beham his right

to demonstrate this bias. Consequently, Mr. Beham was convicted of

aggravated robbery.

      During the punishment phase, the trial court allowed inadmissible

evidence of extraneous offenses. A state’s witness was permitted to testify

about alleged extraneous offenses without any personal knowledge of those

events. Additionally, the state was allowed to admit a charging instrument and

its subsequent dismissal as evidence for two of those alleged offenses.




                                      6
                                ARGUMENT

                          First Issue On Appeal

Appellant was denied his Fifth Amendment right to remain silent when the
trial court failed to suppress a statement given to police where Appellant
invoked his right to remain silent which was not scrupulously honored.


                         Second Issue On Appeal

Appellant was denied his Sixth Amendment right to counsel when the trial
court failed to suppress a confession where Appellant invoked his right to
counsel which was not scrupulously honored.


[Because these points of error involve the same factual context, they are herein

consolidated for argument.]

Standard of Review:

      The standard of review on a suppression issue was set forth in Guzman

v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). A reviewing court

generally uses a bifurcated standard of review in which it gives “almost total

deference to a trial court’s determination of historical facts” but reviews de

novo application of law. Id. at 89. When the resolution of “mixed questions of

law and fact” does not require an evaluation of credibility and demeanor, the

proper standard for review is de novo. State v. Ross, 32 S.W.3d 853, 856 (Tex.

Crim. App. 2000); Guzman, 955 S.W.2d at 89.



                                       7
Facts Showing Error:

      Here, during Beham’s custodial interrogation, Detective Giddens read

Beham his Miranda warnings and then asked if he wanted to talk. The

following exchange took place during that interview:

      “Beham:     Yea, I was gonna try to see if I could get a lawyer. My
                  pops told me to get a lawyer – you got a lawyer for me.

      Detective Giddens: Ok, so you don’t want to talk?

      Beham:      No, I really want to talk to the lawyer and see what’s
                  going on.

      Detective Giddens:     Ok. So you don’t even know why I’m here
                             then, huh?

      Beham:      Yea, they said that you had to talk to me about
                  something – about something about the girl that I was
                  with at the, um, Wal-Mart.

      Detective Giddens:     Mmhmm. Do you want to talk about that?

Beham then told detective Giddens that he took the girl back to Texarkana. At

this point, Detective Giddens made the statement, “Well I’m kind of in a bind

here. Either we want to discuss it or we don’t. Like I said, if it gets too hot on

you, you can shut her down, man - is what I’m talking about.” Beham

hesitated and said, “Well, I’ll see what you got to say first.” Before he was even

finished with that statement, Detective Giddens stated, “Ok, well sign here –

and like right here it says you have the right to terminate this thing at any


                                        8
time. When we’re talking, you say ‘I want my lawyer, I don’t want to talk no

more. Ok? You’ve got the right to do that.” At this point, Beham signed the

warning sheet and made a confession.

      Trial counsel for Beham filed a motion to suppress the statement prior

to trial. Counsel argued that Beham, while possibly equivocal in his first

requests for counsel, was unequivocal when asked whether he wanted to talk

to Detective Giddens in saying, “No…I really want to talk to the lawyer and see

what’s going on” (Vol. 2, pg. 16). As such, Counsel argued that Beham was

denied his Fifth Amendment rights to remain silent and have counsel present

during questioning (Vol. 2, pgs. 16, 21).

      The State opposed the motion to suppress on several grounds. The

State’s first argument was that Beham was ambiguous in invoking his rights.

The trial court listened to the audio recording and made the following

observations on the record: 1) Mr. Beham stated “I want a lawyer;” 2) this did

not constitute an unambiguous request for an attorney; 3)Detective Giddens

continued talking to Mr. Beham; 4) Mr. Beham finally said he would listen to

what Detective Giddens had to say; 5) this constituted a voluntary statement.

(Vol. 2, pg. 22). As a result, the trial court found “that those statements and

the other statements…on the audio…indicate that at all times the conversation



                                       9
was a voluntary conversation (Vol. 2, pg. 25). Subsequently, the trial court

denied Mr. Beham’s motion to suppress the statement (Vol. 2, pg. 25).

At trial, the State asked Detective Giddens if Beham requested an attorney at

any point during his interrogation, Detective Giddens answered “No, ma’am.”

(Vol 4, pg. 69). Over objection of trial counsel for Beham, the jury was played

the video of the interrogation (Vol. 4, pg. 75). During cross-examination,

defense counsel asked Detective Giddens again if Mr. Beham had in fact asked

for an attorney, and Detective Giddens again replied “No” (Vol. 4, pgs. 78-79).

Argument:

      Under Miranda v. Arizona, 384 U.S. 436, 473-474 (1966), if an in-

custody suspect invokes his right to remain silent, questioning must cease

immediately. Subsequent questioning, “subtle or otherwise,” cannot be viewed

as anything other than coercion. Id. at 474. As long as the invocation of the

right to remain silent is clear and unambiguous, the individual’s invocation

must be “scrupulously honored.” Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.

Crim. App. 1996). In order to scrupulously honor a suspect’s right to remain

silent, “A law enforcement officer may not continue to question the suspect

until the officer succeeds in persuading the suspect to change his mind and

talk.” Id. at 257. See also Hearne v. State, 534 S.W.2d 703 (Tex. Crim. App.



                                      10
1976).

      Likewise, once a defendant requests an attorney, police interrogation

must cease immediately. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981);

Miranda, 384 U.S. 436 at 474-75 (1966); McCarthy v. State, 65 S.W.3d 47, 51

(Tex. Crim. App. 2001); Dinkins v. State, 894 S.W.2d 330, 350-51 (Tex. Crim.

App. 1995)). In Edwards, the Supreme Court held that:

      “an accused…having expressed his desire to deal with the police
      only through counsel, is not subject to further interrogation by the
      authorities until counsel has been made available to him, unless
      the accused himself initiates further communication, exchanges,
      or conversations with police.”


451 U.S. at 484-85. The Edwards rule is a “’bright line’ constitutional mandate

frequently repeated by the United States Supreme Court. ” McCarthy, 65

S.W.3d at 51. In order to satisfy Edwards, an individual who has invoked their

right to an attorney must affirmatively reinitiate conversations with law

enforcement. The invocation of the right to counsel “acts like a protective

Edwards, bubble” insulating a suspect from further police-initiated

interrogation. Cross v. State, 144 S.W.3d 521, 529 (2004). As the Supreme

Court in Edwards noted:

      “additional safeguards are necessary when the accused asks for
      counsel; …when an accused has invoked his right to have counsel
      present during custodial interrogation, a valid waiver of that right


                                       11
      cannot be established by showing only that he responded to
      further police-initiated custodial interrogation, even if he has been
      advised of his rights.”

451 U.S. at 484. This case is precisely the type of case the Edwards Court

sought to address.

      Under both Miranda and Edwards, Beham responding “No. I really

want to talk to the lawyer and see what’s going on” when asked if he wanted

to talk clearly demonstrates an unambiguous invocation of his Fifth

Amendment rights to remain silent and to counsel. The standard for an

unambiguous invocation of the Fifth Amendment by a suspect is whether a

reasonable officer would have understood that the suspect might be invoking

the right. Davis v. United States, 512 U.S. 452, 459 (1994). The statement “No.

I really want to talk to the lawyer…” is very nearly as unambiguous a statement

as any suspect could ever possibly make. Detective Giddens understood that

Beham might want a lawyer and might not want to answer questions during

his more equivocal requests. Hence Detective Giddens asking, “Ok, so you

don’t want to talk?” If Detective Giddens was not sure at that point, Beham’s

response of “No. I really want to talk to the lawyer and see what’s going on”

should have removed any doubt. As such, the interrogation should have

ceased immediately.



                                       12
      However, Detective Giddens continued to question Mr. Beham after he

invoked his Fifth Amendment rights to silence and counsel when he stated

“Ok. So you don’t even know why I’m here then, huh?” When Beham told the

detective he wanted to talk to an attorney to find out what was going on, this

was not an invitation for Detective Giddens to continue the interrogation.

However, similar to the strategies the Miranda Court discussed regarding law

enforcement tactics to keep suspects from invoking their rights, Detective

Giddens attempted to keep Beham talking in order to extract his confession.

Again, Miranda mandates that when an in-custody suspect invokes his right

to remain silent, questioning must cease immediately. 384 U.S. 436, 473-474.

Detective Giddens’ follow-up questioning, “subtle or otherwise,” cannot be

viewed as anything other than coercion. Id. at 474. Disguising the question as

clarification did not allow Giddens to subvert the rule. As long as the

invocation of the right to remain silent is clear and unambiguous, and

Beham’s clearly was, the individual’s invocation must be “scrupulously

honored.” Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996).

Detective Giddens clearly did not scrupulously honor Mr. Beham’s rights,

making the statement invalid as a matter of law.

      The State has the burden to prove that a suspect “specifically and



                                      13
affirmatively waived this right to counsel.” Ochoa v. State, 573 S.W.2d 796,

801 (Tex. Crim. App. 1978). During the suppression hearing, the State relied

mainly on the more equivocal requests Beham made for an attorney in

opposition to the motion to suppress (Vol. 2, pgs. 17-20, 21). The only

argument made against Beham’s plainly unequivocal invocation was that, in

the State’s opinion, Beham was saying that he didn’t want a lawyer (Vol. 2, pg.

18). Additionally, the State argued that Beham was mumbling. The State

argued that under a totality of the circumstances test, there was never a clear

invocation because Beham was mumbling and his initial requests for counsel

were ambiguous. However, under a totality of the circumstances, logic would

dictate that a suspect would not in one sentence request, ambiguously or

otherwise, an attorney only to say he didn’t want an attorney in the next

sentence. The only thing occurring between the two sentences was the

detective’s question to clarify whether or not Beham wanted to talk, which is

clearly not going to change anything. Thus, the State did not meet its burden

to prove Beham specifically and affirmatively waived his rights.

      The trial court’s failure to suppress the illegal statement led Detective

Giddens’ trial testimony to become alarmingly prophetic. The jury heard

Detective Giddens repeatedly deny that Mr. Beham invoked his right to



                                      14
remain silent or that he requested an attorney during his interview despite

him clearly doing so repeatedly in the audio-recorded statement from the

interrogation. As such, the trial court erred by admitting the recorded

statement Beham gave to Detective Giddens.

Harm Analysis:

     Appellate courts reviewing constitutional error are governed by Rule

44.2(a) of the Texas Rules of Appellate Procedure. Clay v. State, 240 S.W.3d

895, 904 (Tex. Crim. App. 2007); Hutchison v. State, 424 S.W.3d 164, 182

(Tex. App.—Texarkana 2014). The judgment must be reversed unless the

reviewing court finds beyond a reasonable doubt that the error did not

contribute to the appellant’s conviction. “A defendant’s own confession is

probably the most probative and damaging evidence that can be admitted

against him.” McCarthy, 65 S.W.3d at 56 (quoting Arizona v. Fulminante, 499

U.S. 279, 296 (1991)).




                                     15
                         Third Issue On Appeal

      Appellant was denied his Sixth Amendment right to confront the
      witnesses against him when the trial court refused to allow
      Appellant’s counsel to present admissible evidence demonstrating
      bias of a State’s witness.


                           Standard of Review:

      Appellate courts generally review a trial court’s decision to exclude

testimony under an abuse of discretion standard. Love v. State, 861 S.W.2d

899, 903 (Tex. Crim. App. 1993). It is a “well-established rule” that an

accused must be given great latitude when cross-examining any witness about

any fact which might show bias against him. Simmons v. State, 548 S.W.2d

386, 388 (Tex. Crim. App. 1977). It is an abuse of discretion and constitutional

error when an accused is denied the right to cross-examine a state’s witness

in the presence of the jury regarding bias or prejudice. Davis v. Alaska, 415

U.S. 308 (1974); Spain v. State, 585 S.W.2d 705, 710 (Tex. Crim. App. 1979);

Simmons v. State, 548 S.W.2d 386, 388 (Tex. Crim. App. 1977); see also

Alford v. United States, 282 U.S. 687 (1931).

Facts Showing Error:

      Arneisha Hall, the State’s key witness, testified against Beham as an

accomplice during trial. Hall testified that Beham was the ringleader when



                                      16
she, Beham, and another man, Jacobi Cox, robbed the Texarkana Country Inn

& Suites. Hall identified Beham as the gunman on the hotel’s surveillance

footage taken at the time. Hall claimed that her job was to find out if the clerk

inside was alone and then serve as the lookout while Beham and Cox went

inside to commit the armed robbery.

      When trial counsel for Beham sought to inquire about Hall’s probation

for prior weapons charges during cross-examination, the prosecutor objected,

stating:

      Your Honor, that was not a felony or a crime of moral turpitude.
      It's outside the rule and there's no reason he should be getting
      into it to impeach this witness. She has not ever indicated that she
      doesn't have a criminal history or that she was a good person who
      wouldn't commit a crime. She appears here in jail clothes and
      shackles and admits to being incarcerated for a robbery. We'd ask
      that the jury disregard the last question (IV R.R. at 53-54).


Despite trial counsel for Beham explaining why the testimony should be

allowed, the trial court sustained the State’s objection and instructed the jury

to disregard (IV R.R. at 54).

Argument:

      In Davis, the defendant sought to elicit information from a state’s

witness during cross-examination about his being on probation at the time he

implicated the defendant, but the trial court would not allow it. 415 U.S. at


                                       17
313. The Supreme Court reversed, holding that an accused must be allowed to

ask questions about a State’s chief witness being on probation. Davis, 415 U.S.

at 315-21. The Court reasoned that not only do such questions have the

potential to show bias, but their denial has the potential to infer to the jury

that an inquiry into the witness’s bias is baseless. It is the jury who is the sole

trier of fact and credibility, and they must be allowed to determine if a witness

is reliable.

      In Simmons v. State, 548 S.W.2d 386, a defendant was denied his Sixth

Amendment right to confrontation when the trial court refused to allow

questions concerning the prior arrests of the State’s chief witness. In revisiting

previous confrontation cases, the Texas Court of Criminal Appeals reaffirmed

the “well-established rule” that an accused must be given the opportunity to

demonstrate any fact that would show an incentive for a witness against him

to fabricate his testimony. Id. at 388. Ultimately, the Court held that even

questions relating to dismissed charges must be allowed during cross-

examination since they have the potential to demonstrate the bias of a witness

against the accused. In its opinion ordering reversal and remand, the Court

held that “The denial of the right of effective cross-examination in this case is

‘constitutional error of the first magnitude and no amount of showing of want



                                        18
of prejudice could cure it.’” Simmons, at 388 (quoting Davis, 415 U.S. at

318).

        Similarly, Beham was denied his Sixth Amendment right to

confrontation when the trial court sustained an objection to questions

concerning Arneisha Hall’s probation for prior weapons charges. None of the

State’s arguments against the questioning were relevant to this determination.

The obvious implication from the State’s argument is that Rule 609,

impeachment by evidence of a criminal conviction, should apply. This was not

Beham’s purpose for the questions, so clearly this is not the applicable rule.

        The purpose of the questioning was not, as the State and trial court

seemed to think, to discredit Hall by demonstrating that she had committed

a crime. Testimony on direct had already established that Hall previously pled

guilty to the robbery. The purpose of the questioning of Hall about her

probation was to demonstrate two different points of bias.

        First, part of Hall’s plea to robbery as a lesser included offense was that

there was no deadly weapon finding. A substantial part of Hall’s testimony

focused on the narrative that she was just the “lookout” during the robbery

and nothing more. Hall also claimed that she did not know where the gun

came from. In fact, the State went to great lengths to paint Hall as a



                                         19
cooperating witness who didn’t have a gun and wanted to take responsibility.

This testimony could have been part of the quid pro quo for Hall’s plea. Hall

was still susceptible to pressure from the State. Inquiry into her probation on

the weapons charges could have brought to light new evidence with regard to

who actually brought the gun. Even if cross-examination into Hall’s probation

had only shown bias by rebutting facts in the State’s case in chief, its denial

still constituted constitutional error. Spain, 585 S.W.2d at 710 (quoting

Alford, 282 U.S. 692).

      Bias could have further been demonstrated if Hall received any special

consideration on a probation revocation arising from a guilty plea to robbery.

Undoubtedly Hall violated her probation by being involved in the robbery.

Any part of Hall’s plea agreement that affected that revocation would

demonstrate further bias which the jury had the right, as the sole triers of fact,

to hear. Not only does Rule 613(b) and case law allow for this inquiry, the

State opened the door on direct examination by asking Hall about her plea

bargain. Trial counsel for Beham should have been given the opportunity to

explore whether Hall’s probation proceedings were a part of that agreement.

      Whether the trial court relied on Rule 608, 609, or 613(b) is inapposite.

The court should have allowed Beham to question Hall about any prejudice



                                       20
resulting from her probation in accordance with the correct rule - 613(b). Tex.

R. Evid. 613(b) (Vernon’s 2015). Case law clearly manifests that cross-

examination questions about a State’s witness being on probation are proper

to demonstrate that witness’s potential for bias. See Davis, 415 U.S. at 318;

Alford v. United States, 282 U.S. 687; Spain v. State, 585 S.W.2d at 710;

Simmons v. State, 548 S.W.2d at 388.

      Trial counsel’s subsequent questions demonstrating bias are not

dispositive to ameliorating the harm suffered by Beham as a result of the trial

court’s sustained objection.

      Harm Analysis:

    “Trial judges retain wide latitude ... to impose reasonable limits on such

cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness' safety, or interrogation that is

repetitive or only marginally relevant.” Johnson v. State, 433 S.W.3d 546, 555

(Tex.Crim.App. 2014).

      “This latitude is exceeded only when the trial court exercises its
discretion to so drastically curtail the defendant's cross-examination as to

leave him “unable to make a record from which to argue why [the witness]

might have been biased or otherwise lacked that degree of impartiality



                                       21
expected of a witness at trial.” This kind of trial-court error is most

conspicuous, of course, when the trial court entirely forecloses the defense

from exposing—“prohibit[s] all inquiry into”—a “prototypical form of bias.”

But it may also be subtler, such as when the only record-making permitted the

defense is so circumscribed that “[a] reasonable jury might have received a

significantly different impression of [the witness's] credibility had [the

defendant's] counsel been permitted to pursue his proposed line of cross-

examination.” Id at 555.

      The witness being cross-examined, had already admitted that she was

being granted a considerable amount of reward for her testimony, including

the fact that her charge had been reduced from aggravated robbery to robbery.

(Vol. 4, pg. 55). Further, she admitted that she had lied about just about

everything, including her involvement in the crime when first interviewed by

the police. (Vol. 4, pgs. 51-3). Appellant should have been allowed to further

inquire about her bias in testifying for the State based upon the fact that she

was also in jeopardy in her probation case, so that the jury could completely

judge her credibility and her motivation for testifying to the matters that

incriminated the Appellant.




                                      22
                         Fourth Issue On Appeal

      The trial court abused its discretion as a matter of law by
      admitting evidence of extraneous offenses during the punishment
      phase without an initial finding of reasonable doubt as required
      by Article 37.07§ 3(a)(1) of the Texas Code of Criminal Procedure.


                          Fifth Issue On Appeal

      The trial court abused its discretion by admitting extraneous
      offense evidence during the punishment phase whose probative
      value was substantially outweighed by its unfair prejudice in so
      much as it invited the jury to assess Beham’s punishment based
      on an emotional or moral basis.


[Because these points of error involve the same factual context, they are herein

consolidated for argument.]



Standard of Review:

      Appellate courts generally review a trial court’s decision to admit or

exclude testimony under an abuse of discretion standard. Green v. State, 934

S.W.2d 92, 101–02 (Tex. Crim. App.1996); Taylor v. State, 995 S.W.2d 279,

283 (Tex. App.-Texarkana 1999, pet. granted). In determining abuse of

discretion, appellate courts determine whether the trial court acted arbitrarily

or capriciously and will uphold a decision unless it falls outside of the “zone

of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391-92


                                      23
(Tex. Crim. App. 1990).

        Article 37.07§ 3(a)(1) of the Texas Code of Criminal Procedure, which

governs extraneous offense evidence during the punishment phase, states

that:

        Regardless of the plea and whether the punishment be assessed
        by the judge or the jury, evidence may be offered by the state and
        the defendant as to any matter the court deems relevant to
        sentencing, including but not limited to the prior criminal record
        of the defendant, his general reputation, his character, an opinion
        regarding his character, the circumstances of the offense for which
        he is being tried, and, notwithstanding Rules 404 and 405, Texas
        Rules of Evidence, any other evidence of an extraneous crime or
        bad act that is shown beyond a reasonable doubt by evidence to
        have been committed by the defendant or for which he could be
        held criminally responsible, regardless of whether he has
        previously been charged with or finally convicted of the crime or
        act.

Tex. Code Crim. Proc. Art. 37.07 § 3 (Vernon’s 2015).

        Trial courts should refer to the language of Article 37.07 when they are

making determinations regarding the admissibility of evidence under its

authority. Haley v. State, 173 S.W.3d 510, 514 (Tex. Crim. App. 2005). Before

extraneous offense evidence can be considered in determining punishment,

the fact-finder must be satisfied beyond a reasonable doubt that the bad acts

are attributable to the defendant. Haley, at 514; Fields v. State, 1 S.W.3d 687,

688 (Tex. Crim. App. 1999); Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim.



                                        24
App. 1994). The defendant’s involvement in the act itself must be proven

beyond a reasonable doubt to satisfy the statute. At the time extraneous

offense evidence is offered, the trial court must make an initial determination

on whether the jury could find that the defendant committed the offense

beyond a reasonable doubt. Fields, 1 S.W. 3d at 688; see Mitchell v. State, 931

S.W.2d 950, 954 (Tex. Crim. App. 1996).

Facts Showing Error:

      Here, during the punishment phase testimony of Detective Giddens, the

State sought to introduce evidence of extraneous offenses to demonstrate so-

called “contact with law enforcement” (Vol. 5, pgs. 31). Trial counsel for

Beham objected when the State asked Detective Giddens if he found an arrest

for unlawful possession of a weapon in Shelby County, Tennessee, when he

was familiarizing himself with Beham’s criminal record (Vol. 5, pgs. 30-31).

The trial court allowed trial counsel to voir dire Detective Giddens outside the

presence of the jury (Vol. 5, pgs. 31-32). During the voir dire examination,

Detective Giddens admitted to having no personal knowledge of the alleged

events or their circumstances (Vol. 5, pgs. 32-33). Subsequently, trial counsel

for Beham renewed his objection based on the detective’s lack of personal

knowledge, arguing the evidence would prejudice the jury without adding any



                                      25
probative value (Vol. 5, pgs. 33-34). In rebuttal, the state acknowledged that

the evidence wasn’t being introduced to prove Beham had committed the

crimes (Vol. 5, pgs. 34-35). Instead, the State wanted to demonstrate that

Beham’s having had “contact with law enforcement” made him more

deserving of a harsher punishment (Vol. 5, pgs. 34-35).

      Relying upon Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002),

the trial court focused its analysis primarily on the four factor balancing test

of Rule 403 for determining the admissibility of extraneous offense testimony.

Finding that the prejudicial effect of the extraneous offense evidence did not

substantially outweigh its probative value, the trial court admitted all of the

State’s evidence of unadjudicated extraneous offenses (Vol. 5, pgs. 35). In

doing so, the trial court disregarded Article 37.07 entirely, stating that: “As

Counsel has indicated, under Article 37.07, extraneous offenses are

admissible” (Vol. 5, pg. 36). According to the record, the trial court seemingly

declined to analyze both Article 37.07 and prong two of the Rule 403

balancing test (Vol. 5, pg. 36). Instead, the Court briefly analyzed prong three -

finding that the evidence would not take much time to develop and part four

– “I don’t find that the state has a tremendous amount of evidence so that the

need for it would not be great” of the balancing test (Vol. 5, pg. 36).



                                       26
Fourth Issue on Appeal:

      The trial court erred by failing to make any meaningful analysis of the

extraneous offense evidence under Article 37.07 §3 in determining the

admissibility as prescribed by statute. Tex. Code Crim. Proc. Art. 37.07 §3

(Vernon’s 2015); See Haley, 173, S.W.3d at 514; Huizar, 12 S.W.3d 479 at 481

(Tex.Crim.App.2000); Fields, 1 S.W. 3d at 688. Rule 402 of the Texas Rules

of Evidence states:

Relevant evidence is admissible unless any of the following provides
otherwise:

      • the United States or Texas Constitution;

      • a statute;

      • these rules; or

      • other rules prescribed under statutory authority.

      Irrelevant evidence is not admissible.

Tex. R. Evid. 402 (Vernon’s 2015). 0.

      As case law clearly demonstrates (and as trial counsel for Beham

correctly pointed out (Vol. 5, pgs. 33-34)), Article 37.07 § 3(a)(1) requires an

initial finding by the trial court of proof beyond a reasonable doubt that the

defendant has committed the bad act alleged as a prerequisite to admissibility

during the punishment phase. See Haley, 173 S.W.3d at 514; Huizar, 12


                                      27
S.W.3d at 483; Fields, 1 S.W.3d at 688; Harrell, 884 S.W.2d at 160. This

initial finding must be made at the time the evidence is offered.

      Interestingly, the State acknowledged that it could not, and would not,

meet any burden of proof that Beham actually committed the alleged acts in

the extraneous offense evidence, let alone do so beyond a reasonable doubt

(Vol. 5, pgs. 34-35). Instead, the State founded its argument wholly on an

incorrect interpretation of Article 37.07§ 3(a)(1), reading that it allowed for

unfettered admittance of evidence during punishment (Vol. 5, pgs. 34-35). As

such, all evidence regarding the arrest for the alleged unlawful possession of

a weapon in Shelby County, Tennessee, and all evidence of the arrest, charges,

and dismissal of both the aggravated burglary of a habitation and theft in

Shelby County, Tennessee were inadmissible as a matter of law. The trial court

clearly abused its discretion by admitting the evidence without regard to any

guiding principles.

Fifth Issue on Appeal

      The trial court erred in ruling that the probative value of the extraneous

offense evidence was not outweighed by unfair prejudice. The Rule 403

balancing test used in Wheeler, provides that:

      The trial court should consider several factors in determining
      whether the prejudicial effect of evidence substantially outweighs


                                      28
      its probative value under Rule 403. These factors include:

      1.    how compellingly evidence of the extraneous offense serves
            to make a fact of consequence more or less probable;

      2.    the extraneous offense's potential to impress the jury in
            some irrational but indelible way;

      3.    the trial time that the proponent will require to develop
            evidence of the extraneous misconduct; and

      4.    the proponent's need for the extraneous transaction
            evidence.


Wheeler, 67 S.W.3d at 888.

      A trial court errs if its ruling is not in the “zone of reasonable

disagreement” when admitting relevant evidence whose probative value is

substantially outweighed by its danger of unfair prejudice. When one or more

“relevant criteria reasonably conducing to a risk that the probative value of the

tendered evidence is substantially outweighed by unfair prejudice is

determined to have substantially outweighed probative value” based on a

review of the record, the admittance will constitute an abuse of discretion.

Montgomery, 810 S.W.2d at 393. Relevant criteria includes, in pertinent part,

that the alleged bad act “was of such a nature that a jury instruction to

disregard it for any but its proffered purpose would not likely have been

efficacious.” Id. at 392-93.


                                       29
      Here, factor two weighs heavily against the court’s ruling that the

extraneous offense was admissible under Rule 403. Id. at 393. Given the

criteria set out in Montgomery, the trial court should have found that the

probative value of the evidence was substantially outweighed by its unfair

prejudice. The alleged bad acts of unlawful weapons possession, aggravated

burglary, and theft are all closely connected in nature with aggravated

robbery. Even assuming the trial court conducted some analysis under the

second prong, where none is reflected in the record, the State’s affirmation on

the record of offering the evidence for the sole purpose of showing conformity

of character coined as “contact with law enforcement” (Vol. 5, pgs. 34-35). The

only logical inference that can be drawn from evidence so purposefully

inflammatory is an invitation for the jury to assess the defendant’s

punishment on an emotional or moral basis. Id. at 395. The State’s comment

in closing arguments claiming “here’s where he committed aggravated robbery

– or aggravated burglary and theft of property in Shelby County, Tennessee”

fortifies the State’s intent for this evidence to evoke a visceral response from

the jury (Vol. 6, pg. 5). This is precisely the type of prejudice the Rule 403

balancing test is designed to guard against – evidence that invites the jury to

substitute their oath to follow the law with their own emotions. Thus, the



                                      30
absence of any inquiry into relevant criteria under the second prong of Rule

403’s balancing test’s reveals an abuse of discretion by the trial court by

admitting the objected-to extraneous offense evidence during punishment.

      An arrest or indictment or other instigation of criminal charges is no

evidence of guilt. Texas Code of Criminal Procedure, Article 38.03 (Vernon’s

2015); Bell v. State, 724 S.W.2d 780, 781 (Tex.Crim.App.1986). It would also

be true that a dismissal of charges is no evidence of innocence. Because

neither the charging nor the dismissal of charges has no tendency to make

appellant's commission of the offered extraneous offenses more or less

probable, there can seriously be no claim that the evidence was relevant.

      Additionally, the State provided the Appellant with its notice of intent

to offer extraneous evidence at the guilt-innocence and at the punishment

phase of the trial approximately 20 days for the trial began. (C.R., pg. 65). In

that notice the State notified the Appellant that it intended to show that the

Appellant “committed” Assault, Aggravated Burglary and a Weapons charge

in Shelby county Tennessee. (C.R., pg. 66). It is clear, that at trial the State

was well aware of the fact that they could not prove the Appellant committed

any of these charges. The admission of these “contacts” however clearly left

the jury with the impression that the Appellant had a lengthy criminal record



                                       31
when none existed. See Mendiola v. State, 21 S.W.3d 282 (Tex. Crim. App.

2000).

Harm Analysis:

     Upon finding an abuse of discretion by a trial court, appellate courts

must determine whether the error had a substantial effect on the jury’s

verdict. Haley, 173 S.W.3d at 518. Rule 44.2 of the Texas Rules of Appellate

Procedure states:

     44.2. Reversible Error in Criminal Cases

     (a)   Constitutional Error.

           If the appellate record in a criminal case reveals
           constitutional error that is subject to harmless error review,
           the court of appeals must reverse a judgment of conviction
           or punishment unless the court determines beyond a
           reasonable doubt that the error did not contribute to the
           conviction or punishment.

     (b)   Other Errors.

           Any other error, defect, irregularity, or variance that does
           not affect substantial rights must be disregarded.


Tex. R. App. P. 11 (Vernon’s 2015).

     In determining the probability that the error had an injurious effect on

the jury’s assessment of punishment, a reviewing court should consider

everything in the record, such as testimony or physical evidence admitted for


                                      32
consideration by the jury, the character of the evidence supporting the verdict,

and the character of the alleged error and how it might be considered in

connection with other evidence in the case. Jury instructions, theories by

either the State or defense, closing arguments, voir dire and whether the State

emphasized the error should also be considered by appellate courts. Haley, at

518-19.

      Here, the extraneous offense evidence at issue unquestionably had a

substantial effect on the jury in assessing Beham’s punishment. The jury

sentenced Beham to 25 years. The record clearly shows the evidence of

unadjudicated extraneous offenses to be the most reflective of the jury’s

assessment of punishment. Removal of the erroneously admitted extraneous

offenses, on the other hand, severely cripples the State’s punishment case.

Without the unadjudicated extraneous offense evidence, the State is stuck only

being able to demonstrate Beham’s criminal record prior to this case through

a single conviction for a Class B Misdemeanor (theft - $5-$500) (Vol. 7, pgs.

18-19). Even then, the State could only offer an order of deferred adjudication

(State Ex. 14, Vol. 7, pg. 18) and a judgment of guilt (State Ex. 15, Vol. 7, pg.

19). The rest of the State’s evidence consisted of victim impact testimony (Vol.

pgs. 102-06), testimony about a few incidents within the correctional facility



                                       33
where Beham was held while awaiting trial (Vol. 5, pgs. 64-65, 68-69, 74-76,

78-79, 82-85), and speculative allegations of gang ties based on Facebook

photos (State Ex. 8-12, Vol. 7, pgs. 12-16) (Vol. 5, pgs. 41-43, 92-96). Tellingly,

the State’s gang expert testified on cross-examination that gang members tend

to have an extensive criminal history (Vol. 5, pg. 98), further illuminating both

the weakness of the State’s case outside of the erroneously-admitted

extraneous offense evidence as well as the substantial harm Beham suffered

as a result from the error to allow it.




                                          34
                               CONCLUSION

      For the reasons stated herein, Appellant, Roderick Beham prays that this

honorable Court find error as outlined above and reverse his conviction for the

offense of Aggravated Robbery and order that he be granted a new and fair

trial in accordance with the law and statutes of the State of Texas.



                                     Respectfully submitted,



                                     /s/Alwin A. Smith
                                     Alwin A. Smith
                                     TBN: 18532200
                                     al@alwinsmith.com
                                     602 Pine Street
                                     Texarkana, Texas 75501
                                     903/792-1608
                                     903/792-0899 Fax


                        Certificate of Compliance

      Pursuant to the Tex. R. App. P. 9.4(i)(3), I hereby certify that this brief
contains 6,494 words (excluding the caption, table of contents, table of
authorities, signature of proof of service, certification and certificate of
compliance). This is a computer-generated document created in Wordperfect,
using 14 point typeface for all text. In making this certificate of compliance,
I am relying on the word count provided by the software used to prepare the
document.

                                     /s/Alwin A. Smith



                                       35
                          Certificate of Service

      This is to certify that a true and correct copy of Appellant’s Brief has
been forwarded to the Appellant, Roderick Beham, Lewis Unit, 777 FM
3497,m Woodville, Texas 75990 and Jerry Rochelle, Attorney for the State,
601 Main Street, Texarkana, Texas 75501, on this the 15th day of May 2015,
by placing the same in the U.S. Mail or private courier service.


                                    /s/Alwin A. Smith




                                     36
