                                                                        ACCEPTED
                                                                    06-15-00114-CR
                                                         SIXTH COURT OF APPEALS
                                                               TEXARKANA, TEXAS
                                                              11/16/2015 3:36:38 PM
                                                                   DEBBIE AUTREY
                                                                             CLERK

              No. 06-15-00114-CR

                                                   FILED IN
                                            6th COURT OF APPEALS
                                              TEXARKANA, TEXAS
        IN THE COURT OF APPEALS             11/16/2015 3:36:38 PM
        SIXTH DISTRICT OF TEXAS                  DEBBIE AUTREY
             AT TEXARKANA                            Clerk




    GEORGE WASHINGTON SHARPER
            APPELLANT
                v.
        THE STATE OF TEXAS,
             APPELLEE

On Appeal from the 196th Judicial District Court
           Of Hunt County, Texas
           Trial Court Cause 28240
     Hon. Joe Clayton, Judge Presiding



            APPELLANT’S BRIEF




                          Katherine A. Ferguson (SBN 06918050)
                          Renshaw, Davis & Ferguson, L.L.P.
                          2900 Lee Street, Suite 102
                          P.O. Box 21
                          Greenville, Texas 75403-0021
                          Telephone: (903) 454-6050
                          Facsimile: (903) 454-4898
                          Email: rdflawoffice@yahoo.com

                          ORAL ARGUMENT NOT REQUESTED
               IDENTITIES OF PARTIES AND COUNSEL

Appellant:                        George Washington Sharper

Defense Counsel at Trial:         Jack L. Paris, Jr.
                                  3101 Joe Ramsey Blvd., Suite 101
                                  Greenville, Texas 75404


Appellant’s Attorney on Appeal:   Katherine A. Ferguson
                                  Renshaw, Davis & Ferguson, L.L.P.
                                  2900 Lee Street, Suite 102
                                  P.O. Box 21
                                  Greenville, Texas 75403-0021

Appellee’s Attorney at Trial:     Calvin Grogan
                                  Assistant District Attorney
                                  Hunt Co. District Attorney
                                  P.O. Box 441
                                  Greenville, Texas 75403-0441

Appellee’s Attorney on Appeal:    Calvin Grogan
                                  Assistant District Attorney
                                  Hunt Co. District Attorney
                                  P.O. Box 441
                                  Greenville, Texas 75403-0441

Trial Judge:                      Hon. Joe Clayton
                                TABLE OF CONTENTS

Identities of Parties and Counsel ………………………….……..…….ii

Table of Contents………………………………………………………iii

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

Statement of the Case………………………………………..................2

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

Statement of Facts ……………………………………………………2

Summary of the Argument …………………………………………… 6

Argument and Authorities ….…………….…………….…...................8

ISSUE NUMBER ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

        THE TRIAL COURT ERRED IN ADMITTING THE
        OUT OF COURT STATEMENT OF MARCUS
        STEPHENSON.

ISSUE NUMBER TWO ……………………………………………..16


        THE TRIAL COURT ERRED IN ADMITTING
        TESTIMOMY REGARDING AN EXTRANEOUS
        OFFENSE DURING THE GUILT-INNOCENCENCE
        PHASE OF THE TRIAL.


PRAYER……………………………………..........................................21

CERTIFICATE OF SERVICE…..……………………………………...22
                        INDEX OF AUTHORITIES

Cases
Crawford v. Washington, 541 U.S. 36, 52 (2004) …………………………10

Davis v. Washington, 547 U.S. 813, 821 (2006)……………… …………..10

U.S. v. Elizondo, 502 Fed. Appx. 369, 372 (5th Cir. 2012) ………...... …11

U.S. v. Flores, 985 F.2s 770, 780 (5th Cir. 1993) ………………………… 11

U.S. v. Houston, 481 Fed. Appx. 188, 193 (5th Cir. 2012) …………… . …19

U.S. v. Owens, 484 U.S. 554 (1988) ………………………………………12

United States v. Alvarado-Valdez, 521 F.3d. 337, 341 (5th Cir. 2008) …….15

Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981) …………17

Jahanian v. State,
   145 S.W.3d. 346, 350 (Tex. App. – Houston [14th Dist.] 2004) …10, 13

Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) ……….10, 15

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992)    …………....8

O’Rarden v. State, 777 S.W.2d 455
                   (Tex. App. – Dallas 1989, pet. ref’d)   ….……………8

Ransom, v. State, 503 S.W.2d 810 (Tex. Crim. App. 1974) ………………18

Simmons v. State, 457 S.W.2d 570 (Tex. Crim. App. 1970) ……………..20

Snowden v. State, 353 S.W.2d 815 (Tex. Crim. App. 2011) …………….15

Walker v. State, 406 S.W. 3d 590, 596 (Tex. 2013) ……………………….13

Statutes and Rules

TEX. RULE APP. P. 33 ………………………………………………………8
                            No. 06-15-00114-CR


                     IN THE COURT OF APPEALS
                     SIXTH DISTRICT OF TEXAS
                          AT TEXARKANA


                 GEORGE WASHINGTON SHARPER
                         APPELLANT

                                      v.

                         THE STATE OF TEXAS,
                              APPELLEE

            On Appeal from the 196th Judicial District Court
                       Of Hunt County, Texas
                    Trial Court Cause No. 28,240
                 Hon. Joe Clayton, Judge Presiding




                          APPELLANT’S BRIEF



TO THE HONORABLE COURT OF APPEALS:

      NOW COMES Appellant, GEORGE WASHINGTON SHARPER,

and respectfully submits this brief in support of his appeal of the judgments

of the 196th Judicial District Court of Hunt County, Texas, the Honorable

Joe Clayton presiding.
                     STATEMENT OF THE CASE

      The Appellant, GEORGE WASHINGTON SHARPER, was charged

in Cause No. 28,240 with the offense of capital murder. (CR #15-16).

Appellant plead “Not Guilty.” The State of Texas was not seeking the death

penalty; if found guilty the sentence would be life in the Texas Department

of Corrections Institutional Division. Thereafter, a jury was empanelled and

the case was tried on GEORGE WASHINGTON SHARPER’s plea of not

guilty.   After four days of testimony, the jury convicted GEORGE

WASHINGTON SHARPER of capital murder.                Thereafter, the Court

sentenced GEORGE WASHINGTON SHARPER to life in prison without

parole.   Appellant filed a Motion for New Trial which was heard and

denied. (CR #216-253; #318) This appeal is taken therefrom.

                          ISSUES PRESENTED

      ISSUE NUMBER ONE: THE TRIAL COURT ERRED
      IN ADMITTING THE OUT OF COURT STATEMENT
      OF MARCUS STEPHENSON.


      ISSUE NUMBER TWO: THE TRIAL COURT ERRED
      IN ADMITTING TESTIMOMY REGARDING AN
      EXTRANEOUS OFFENSE DURING THE GUILT-
      INNOCENCENCE PHASE OF THE TRIAL.

                       STATEMENT OF FACTS
      GEORGE WASHINGTON SHARPER (hereinafter, “Appellant”) was

indicted for the offense of capital murder (CR #15).

      On June 27, 2007, the Greenville Police Department responded to a

911 call regarding a shooting at 3408 Henderson in Greenville, Texas. (RR

Vol. 5, 23:19-22) Upon arrival Officer Phillip Spencer of the Greenville

Police Department (“GPD”) found David Olivares, a Hispanic male,

(hereinafter “the victim”) with a single gunshot wound to the chest. (RR

Vol. 5, 26:20-25) The victim was lying just inside of the front door of the

residence, and there was a metal storm door with broken glass at the bottom.

(RR Vol. 5, 43:11-19) The victim was non-responsive but still breathing.

(RR Vol. 5, 44:1-2) The officers assessed the body to see if there were more

wounds; after moving the body the victim stopped breathing and the GPD

officers began CPR.     (RR Vol. 5, 27:13-19)          There were some other

Hispanic males present at the residence. (RR Vol. 5, 44:7-9) The victim

was taken to the Hunt Regional Medical Center where he was pronounced

dead by Justice of the Peace Aaron Williams. (RR Vol. 5, 46:10-47:20)

      Armando Torres Soto lived at 3408 Henderson with the decedent and

several other Hispanic males. (RR Vol. 5, 72:6-23) Mr. Soto testified he

was unaware of any enemies that the victim may have had. (RR Vol. 5,

75:1) The victim slept in the living room of the house. (RR Vol. 5, 75:15-
16) On the day of the shooting, a female showed up who made threats

against the victim. (RR Vol. 5, 77:7-11) Mr. Soto had seen her at the house

before (RR Vol. 5, 80:11-14) asking for money (RR Vol. 5, 80:23-25) and

knew that Uzzivil Torres, another resident, had seen and heard the woman

threaten the victim. (RR Vol. 5, 79:2-7) Mr. Soto knew the woman only by

the nickname “La Diabla.” (RR Vol. 5, 92:10-11) Another person, Uncle

Canuto, was visiting the residence and was present at the time of the

shooting, but became frightened afterward and returned to Mexico. (RR

Vol. 5, 112:16-113:5)

      Roberto Olivares also resided in the house the victim, who was his

cousin. (RR Vol. 5, 116:14-18) He was asleep when his cousin was shot.

(RR Vol. 5, 119:8-9) The day after the shooting, Mr. Olivares was shown a

police line-up and picked out Carla Thornton, the woman he knew as

Vanessa but whom the others called “La Diabla” as the person who had been

to the house before. (RR Vol. 5, 121:13; 123:3-5; 125:23-126:10)

      Lt. William Cole of GPD testified that he also responded to the scene

of the shooting. He testified that three shell casings were recovered (RR

Vol. 5, 187:11-188:1) and that the door was damaged as if someone had shot

through it (RR Vol. 5, 189:8-17) Lt. Cole spoke with the other residents,
who told him about the woman “La Diabla” and Cole listed Vanessa as a

suspect in the case. (RR Vol. 5, 195:13-209:16)

      Steve Walden, a sergeant in the Criminal Investigations Division at

GPD, testified that he recovered $300.00 in cash, some checks and other

property of the victim from the victim’s car at the residence. (RR Vol. 5,

219:10-226:7)

      Carla Thornton testified that she knew Appellant because Appellant

was her daughter’s husband. (RR Vol. 6, 45:5-15) Thornton testified that

Appellant and Markus Stephenson allegedly told her that they had killed a

guy (RR Vol. 6, 83:6-8). Thornton also testified that she told police where

they could find the gun used in this offense because it had been used by

Appellant in another robbery. (RR Vol. 6; 85:20 – 86:6; 13-18; 87:1-11)

      William Ball, a Commerce peace officer, testified that he was called

as backup on July 23, 2007 for a felony stop regarding a possible robbery

(RR Vol. 6, 123:16-124:15) Ball stated that Appellant was one of three

individuals in the car that was stopped. (RR Vol. 6, 125:16-17) Ball

testified that upon a search of the vehicle, he recovered a silver or chrome

.380 semiautomatic pistol in the back passenger floor area of the car. (RR

Vol. 6, 127:1-16) (SX 16B) Officer Neil Johnson with the Commerce

Police Department took custody of the gun from Ball. (RR Vol. 6, 140:7-13)
      Wade Thomas, a forensic scientist with the Department of Public

Safety crime lab who specializes in firearms and tool marks, performed an

analysis of SX16B as well as the bullets recovered from the scene and the

body of the victim. (RR Vol. 6, 152:9-159:8) Thomas testified that the

weapon that was fired at the victim is the same weapon as SX16B. (RR Vol.

6, 165:2-17)

      Markus Ladane Stephenson was called to testify at Appellant’s trial.

Stephenson immediately claimed his privilege against self-incrimination.

(RR Vol. 6, 192:12) The State continued to question Stephenson and he

continued to invoke the Fifth Amendment. (RR Vol. 6, 192:15-16) The

Court instructed Stephenson to answer the State’s questions. (RR Vol. 6,

193:2-3; 9-10; 14-15; 19) Stephenson then claimed he could not remember

his prior statements and the Court admitted a redacted copy of a transcript of

Stephenson’s statement to the police. SX 18

      Officer Warren Mitchell of the Greenville Police Department testified

about his interview with both Thornton and Stephenson.

                   SUMMARY OF THE ARGUMENT

      The Appellant was tried for capital murder. At trial, the State offered

the testimony of an alleged co-actor, Markus Stephenson (“Stephenson”).

When called to testify, Stephenson invoked his right against incrimination
under the 5th Amendment to the Constitution of the United States of

America. Stephenson indicated that although he had pled to the charge, he

was in the process of appealing his conviction and had sought the assistance

of writ attorneys. Stephenson’s invocation of his privilege against self-

incrimination rendered him unavailable to testify. The State then entered

into evidence the statement Stephenson had given to law enforcement

officers regarding the offense. Appellant had no prior opportunity to cross-

examine Stephenson on his prior statement, and therefore the admission of

this statement violated Appellant’s right to confront and cross examine the

witnesses against him. The admission of the statement of Stephenson was

clearly harmful, as the testimony of Stephenson was the only direct evidence

of the aggravating circumstance necessary to make the case one for capital

murder rather than just murder.

      The Trial Court also erred in admitting testimony regarding an

extraneous offense of Appellant.       The State offered testimony that

approximately one month after the underlying offense, Appellant committed

an armed robbery. The allegation was that Appellant used the same weapon

in that extraneous offense as used in the underlying charge. However, there

was no evidence that Appellant was ever convicted of that offense or that the

weapon used in this case was the same as in the extraneous offense. The
Trial Court initially allowed Carla Thornton to testify about the offense, but

later ruled further evidence of the extraneous offense would be too

prejudicial. By allowing the testimony of Carla Thornton on the extraneous

offense, the jury was allowed to consider evidence of Appellant’s criminality

in general as a basis for convicting him of the underlying offense.

                                ARGUMENT

ISSUE NUMBER ONE: THE TRIAL COURT ERRED IN ADMITTING
                  THE OUT OF COURT STATEMENT OF
                  MARCUS STEPHENSON.

Preservation of Error

      Texas Rule of Appellate Procedure 33.1(a) sets forth the standards for

preserving a complaint for appellate review. First, the record must reflect

that the complaint was made to the trial court by a timely request, objection

or motion that states the grounds for the request with specificity and the trial

court ruled on the request. TEX. R. APP. P. 33.1(a). “As regards specificity,

all a party has to do to avoid the forfeiture of a complaint on an appeal is to

let the trial judge know what he wants, why he thinks himself entitled to it,

and to do so clearly enough for the judge to understand him at a time when

the trial court is in a proper position to do something about it.” Lankston v.

State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). The request may be

made orally. O’Rarden v. State, 777 S.W.2d 455, 460 (Tex. App. – Dallas
1989, pet. ref’d) (Holding that oral motion for continuance preserved

complaint for appellate review.)

      The objection to the admission of Stephenson’s testimony properly

preserved the Confrontation Clause violation for appellate review.

Appellant’s trial counsel made a timely, specific objection to the admission

of the testimony of Stephenson.       Appellant’s trial counsel made the

following objections:

            “There are constitutional problems as far as that

            kind of evidence, because the issue of - well, first

            of all, that is hearsay, but beyond that there’s the

            confrontation and cross examination.” (RR Vol. 6,

            201:17-19)

            “Your Honor, I think this issue really has been

            addressed by the Supreme Court of the United

            States, starting with Crawford versus Smith and

            then going to Davis versus Washington, Hammond

            versus Indianan and – and it all has to do with the

            Sixth Amendment, right to confrontation of

            witnesses and – and the bright line that is drawn in

            Crawford and the cases that follow, that helped
            define it, Davis versus Washington and Hammond

            versus Indianan.” (RR Vol. 6, 206:12-19)

      Therefore the error in admitting Stephenson’s prior statement in

violation of the Constitution has been properly preserved for appeal.

Admission of Prior Statement Violated Appellant’s Sixth Amendment Right


      The admission of Stephenson’s prior statement violated Appellant’s

right to confrontation and cross examination of witness under the 6 th

Amendment to the Constitution of the United States of America.             In

Crawford v. Washington, the Supreme Court held the Sixth Amendment

confrontation right applies not only to court testimony but also to out of

court statements that are testimonial in nature. Crawford v. Washington, 541

U.S. 36, 52 (2004) It is clear that the interview of Stephenson by law

enforcement officials was a testimonial statement. “Whatever else the term

covers, it applies at a minimum . . . to police interrogations.” Id at 68. See

also Langham v. State, 305 S.W.3d 568,576 (Tex.          Crim. App. 2010);

Jahanian v. State, 145 S.W.3d. 346, 350 (Tex. App. – Houston [14th Dist.]

2004) (Statement given by suspect to police was testimonial in nature). It is

also clear that Appellant’s counsel did not have a prior opportunity to cross

examine Stephenson about the prior statement. See Davis v. Washington,
547 U.S. 813, 821 (2006) (Cannot admit prior statement at trial who is

unavailable unless defendant had prior opportunity to cross-examine.)

      When Stephenson was called as a witness at trial, Stephenson

immediately invoked his right against self-incrimination.         (RR Vol. 6,

192:12) Stephenson invoked his right against self-incrimination numerous

times. Stephenson testified that he was in the process of trying to appeal his

conviction as a co-actor on this offense. (RR Vol. 7, 31:1-18).

      Stephenson’s invocation of his 5th Amendment rights rendered him

“unavailable” to testify for purposes of Crawford. U.S. v. Flores, 985 F.2d

770, 780 (5th Cir. 1993) (Invocation of 5th Amendment rendered declarant

unavailable and prior statements to law enforcement violated confrontation

clause); U.S. v. Elizondo, 502 Fed. Appx. 369, 372 (5th Cir. 2012) (“In

criminal trials, courts consistently hold that a witness who invokes her Fifth

Amendment right against self-incrimination is ‘unavailable.’”)

      “In criminal trials, a concern naturally arises that the defendant will

not have the opportunity to cross-examine an unavailable witness and ‘test

the truth of the witness’s direct testimony.’” Id. “The right may be violated

when a defendant cannot question a physically present witness.” Id. Here,

Stephenson was physically present at the trial, but his invocation of his

rights made him unavailable. When the Trial Court ordered Stephenson to
answer, he stated in response to numerous questions that he couldn’t

remember making the prior statements to law enforcement.                  (RR

Vol. 6, 194:6, 21; 195:1, 6, 9, 11, 20;197:13-14, 18, 23, 198:1, 6, 10, 13, 16,

20, 24; 199: 2).

      The State may focus on Stephenson’s claim of lack of memory to

argue that a feigned loss of memory does not render a witness unavailable

for confrontation clause purposes. U.S. v. Owens, 484 U.S. 554 (1988)

However, before any memory issues arose, Stephenson had invoked his right

against self-incrimination. The Trial Court ordered Stephenson to answer

without exploring the basis of Stephenson’s claim. Stephenson had pled and

been convicted of that offense; however, Stephenson was also in the process

of challenging that conviction with writ attorneys. (RR Vol. 7, 31:10; MNT

X2, RR Vol. 9, 76:6) Stephenson was still in jeopardy and answering the

questions could impact his appeal.          Therefore, Stephenson’s proper

invocation of his rights rendered him unavailable. His prior statement to law

enforcement could only be admitted if Appellant had a prior opportunity to

confront and cross examine him.

      It is uncontested that Appellant did not have an opportunity to

confront and cross-examine Stephenson about his prior statement. The fact

that Stephenson’s prior statement might have been admissible as an attempt
to refresh his recollection does not change this analysis. “[E]ven when a

statement offered against a defendant is admissible under evidentiary rules,

the statement may implicate the Sixth Amendment’s Confrontation Clause.”

Walker v. State, 406 S.W. 3d 590, 596 (Tex. 2013) “The Constitution simply

does not permit the admission of a testimonial statement of a witness unless .

. . the defendant had a prior opportunity for cross-examination. Jahanian,

145 S.W.3d at 350.

Harm Analysis

       Because the admission of the statement by Stephenson (SX 18)

creates a constitutional error, this Court must reverse unless it determines

“beyond a reasonable doubt that the error did not contribute to the

conviction . . . .” Id.

       Here, the primary evidence against Appellant that he committed

capital   murder      is   the   prior   statement   of   Stephenson    in   S

X 18. The State continuously argued that the statement of Stephenson

proved the aggravating element necessary for the case to be capital. The

State argued:

              “Because you’ve got State Exhibit Number 18 that tells

       you what the intentions was. This isn’t some – this isn’t from

       some police officer who you might, you know, think maybe
      he’s got an agenda and wants to get – this is from the co-actor

      himself . . . .” (RR Vol. 8, 6:12-16) (emphasis added)

             “In fact, the co-actor’s statement talks about a struggle

      at the door. That’s also burglary of a habitation . . . .” (RR

      Vol. 8, 8, 7-8) (emphasis added)

             “Stephenson says, in that transcript, what they were

      doing that night. They intended to go down to hit a lick off of

      these Mexicans that lived down the street. . . . “ (RR Vol. 8,

      36:17-19) (emphasis added)

      The State in closing argument concedes that the only evidence of the

aggravating circumstance necessary to make this case a capital murder is the

transcript of Stephenson: “You twelve have to decide, has the State met its

burden of proof, to prove beyond a reasonable doubt the offense of capital

murder, considering all the evidence. And I ask you, there is no evidence

that it is just murder. . . . If you’re going to go that far, then that means why

don’t you consider what Stephenson said before he was arrested and charged

with this, which means they were going to commit the robbery.” (RR Vol. 8,

37:3-15)

      “A defendant convicted on the basis of constitutionally inadmissible

Confrontation Clause evidence is entitled to a new trial unless it was
harmless in that there was no reasonable possibility that the evidence

complained of might have contributed to the conviction.” United States v.

Alvarado-Valdez, 521 F.3d. 337, 341 (5th Cir. 2008). “Accordingly, the

[State] must demonstrate beyond a reasonable doubt that the tainted

evidence did not contribute to the conviction.” Id. at 342. See Snowden v.

State, 353 S.W.2d 815 (Tex. Crim. App. 2011).

      As is made clear by the State’s closing arguments cited above, the

only evidence of the aggravating circumstance that elevated this offense to

capital murder was the prior statement of Stephenson to law enforcement in

SX 18. Without the statement of Stephenson, the evidence is legally and

factually insufficient to uphold a conviction for capital murder, because

there is no evidence of the aggravating circumstance other than the statement

of Stephenson in SX 18.

      The question for this Court is not whether the verdict was support by

evidence. Instead, the question is the likelihood that the constitutional error

was a contributing factor in the jury’s deliberations; that is, whether the error

adversely affected the integrity of the process leading to the decision.

Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010) Given the

emphasis placed by the State on SX 18 in its closing and the fact that there

was no other evidence offered to support the aggravating circumstance, it is
inconceivable for the jury not to have considered the statement of

Stephenson in determining that Appellant was guilty of capital murder rather

than just murder. As a result, this Court should find that the constitutional

error in admitting the statement of Stephenson (SX 18) was harmful.

      Because the Trial Court erred in denying the Appellant’s right to

confront and cross examine the primary witness against him at trial and that

error was harmful, this Court should reverse the judgment of conviction and

order a new trial.

      ISSUE NUMBER TWO: THE TRIAL COURT ERRED
      IN ADMITTING TESTIMOMY REGARDING AN
      EXTRANEOUS OFFENSE DURING THE GUILT-
      INNOCENCENCE PHASE OF THE TRIAL.

Preservation of Error

      Prior to the testimony of Thornton, counsel for Appellant strenuously

objected to the admission of her testimony about an extraneous offense

committed by Appellant. The Trial Court ruled that the State could elicit

testimony from Thornton about this offense because it went to the issues of

“identity, intent, motive, rebuttal of a defensive theory.” (RR Vol. 6, 76:15-

16). Trial counsel argued that the identity exception did not apply. (RR

Vol. 6, 77:25-26:16) The Trial Court ultimately ruled that the probative

value of the testimony about the extraneous offense “substantially

outweighed” the prejudicial effect. (RR Vol. 6, 79:17-18)
       The testimony of Thornton was that Appellant participated in another

robbery using the same handgun used in this case. (RR Vol. 6, 85:20-86:1)

She testified the Appellant and Stephenson told her about robbing a man

named “Boo” in Commerce and that the police pulled them over shortly

afterwards and recovered the weapon.        (RR Vol. 6, 87:1-88:3)      Other

officers also testified that they made a stop on a vehicle in which Appellant

was present and recovered the handgun used in this offense. (RR Vol. 6,

127:1-16) (SX 16B)

Harm

       The trial court erred in allowing the statements of Thornton regarding

Appellant’s alleged robbery of “Boo.” The Trial Court erred in admitting

Thornton’s testimony to prove the identity of the assailant in this case.

“When identity has become a contested, material issue, as it did in this case,

there must be a showing that the extraneous offense which was committed

by the defendant was ‘so nearly identical in method (to the instant offense)

to earmark them as the handiwork of the accused. Here, much more is

demanded than the mere repeated commission of crimes of the same class . .

.The device must be so unusual and distinctive as to be like a signature.’”

Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981)              The

allegation that Appellant may have committed an armed robbery one month
after the offense in question, using a similar handgun, is not so unique or

distinctive as to qualify as a “signature” of his crimes. Furthermore, there is

the requirement that “before any extraneous offense is admissible the

offenses must be clearly proven and the accused shown to have been its

perpetrator.” Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974)

      In the instant case, the jury was given information by Thornton about

a second crime committed by Appellant that was not proven. The State

attempted to introduce certified copies of convictions, but the Trial Court

reversed its earlier ruling and ruled that the prejudicial effect of this

evidence (conviction for a robbery one month after the instant offense)

outweighed its probative value. (RR Vol. 7, 18:1-2) Therefore, the jury

heard that Appellant committed an armed robbery after the instant offense,

and heard evidence the same gun was used. However, no evidence of a

conviction for the offense, or even that the gun admitted into evidence in this

case was the gun used in the extraneous case, was admitted into evidence.

This error allowed the state to argue to the jury that Appellant’s

“constructive possession” of the weapon a month after this offense

“completely changes the case from identity at the time of the [murder] – the

indicted count that [Appellant] defended – to control [of a car and its

contents one month later] – a wholly separate (and unindicted) issued. U.S.
v. Houston, 481 Fed. Appx. 188, 193 (5th Cir. 2012) The State argued to the

jury that because of the testimony about the Commerce robbery to prove that

Appellant committed the murder one month earlier. (RR Vol. 8, 14:1-10;

15:9-11) The State argued:


            “She also seemed to know about the fact that they

      committed this robbery of a guy named Boo Pitts, over in

      Commerce. What independent corroboration do you have when

      she was telling that story to Warren Mitchell? I don’t know.

      You had two Commerce officers come in here and tell you,

      yeah, that actually happened. Three and a half weeks after this

      shooting, this capital murder, they went and committed a

      robbery in Commerce. … That’s how easy this case is.” (RR

      Vo. 8, 11:23-12:8) (emphasis added)


            “And poor David Olivares lived in that house and was a

      target that night. So that’s one reason why you got to hear

      about the Commerce robbery. Another reason you got to hear

      about it11 is because the gun used to murder David Olivares is

      found with the defendant, in the floorboard, three and a half

      weeks later. He hadn’t gotten rid of the murder weapon. Still
      carrying it around. Still committing more crime.” (RR Vol. 8,

      15:6-11) (emphasis added)


      It is clear from the State’s closing arguments that the State wanted the

jury to find Appellant was the assailant, primarily because he was using the

same weapon three weeks later. However, no evidence was admitted (1) to

prove that the Commerce robbery occurred; (2) that Appellant was the

person who committed the robbery; or (3) that SX 16 was used in the

Commerce robbery.        The State impermissibly used an unadjudicated

extraneous offense to attempt to prove that Appellant intended to rob the

victim in this case, and that Appellant was a participant in the crime. This is

not like Simmons v. State, 457 S.W.2d 570 (Tex. Crim. App. 1970) where a

victim to a robbery identified the defendant and was subjected to a rigorous

cross examination as to the identity of his assailant, rendering the admission

of a later extraneous offense harmless. Here, the identity of the perpetrator

was hotly contested. The admission of the extraneous offense allowed the

State to impermissibly argue that Appellant was the assailant in this case

because he participated in a robbery three weeks later. This is improper.

This Court should reverse Appellant’s conviction and order a new trial.
                                 PRAYER

      WHEREFORE, based upon the foregoing, Appellant prays his

conviction be reversed and a new trial granted.


                                Respectfully submitted,

                                RENSHAW, DAVIS & FERGUSON, L.L.P

                                By:   /s/ Katherine A. Ferguson
                                      Katherine     A. Ferguson       (SBN
                                      06918050)

                                2900 Lee Street, Suite 102
                                P.O. Box 21
                                Greenville, Texas 75403-0021
                                Telephone: (903) 454-6050
                                Facsimile: (903) 454-4898
                                Email:       rdflawoffice@yahoo.com
                      CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Appellant’s Brief was sent
by first class United States Mail, postage prepaid, to the Honorable Noble
Walker, Hunt County District Attorney, P.O. Box 441, Greenville, Texas
75403-0441 on this the 16th day of November 2015.

      I further certify that a true and correct copy of Appellant’s Brief was
sent by first class United States mail, postage prepaid and certified mail,
return receipt requested, to GEORGE WASHINGTON SHARPER c/o
William P. Clements Unit, 9601 Spur 591, Amarillo, Texas 79107-9606.

                                              /s/ Katherine A. Ferguson
                                              Katherine A. Ferguson


         CERTIFICATE OF COMPLIANCE WITH RULE 9.4

       Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that
this document complies with the type volume limitations because it is
computer generated and does not exceed 15,000 words. Using the word
count feature of Microsoft Word, the undersigned certifies that this
document contains 3,843 words in the entire document, except in the
following sections: caption, identities of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of
the case, statement of issues presented, signature, certificate of service and
certificate of compliance. This document also complies with the typeface
requirements as it has been prepared in a proportionally spaced typeface
using Microsoft Word in 14-point Times New Roman.

                                              /s/ Katherine A. Ferguson
                                              Katherine A. Ferguson
