                                                                                        ACCEPTED
                                                                                    06-15-00104-CR
                                                                         SIXTH COURT OF APPEALS
                                                                               TEXARKANA, TEXAS
                                                                              11/16/2015 2:42:05 PM
                                                                                   DEBBIE AUTREY
                          CAUSE NO. 06-15-00104-CR                                           CLERK



                       IN THE SIXTH COURT OF APPEALS
                                                                  FILED IN
                             TEXARKANA, TEXAS              6th COURT OF APPEALS
                                                             TEXARKANA, TEXAS
                                                           11/16/2015 2:42:05 PM
______________________________________________________________________________
                                                                DEBBIE AUTREY
                                                                    Clerk
KENNEDY DEWAYNE RILEY,
                                                                       Appellant

VS.


THE STATE OF TEXAS,
                                                                       Appellee
______________________________________________________________________________

                     On Appeal from Cause No. 13F0131-202 in the
                  202nd Judicial District Court of Bowie County, Texas
______________________________________________________________________________

                          BRIEF OF APPELLANT
______________________________________________________________________________


                                             Respectfully submitted,

                                             /s/ Clint E. Allen
                                             Attorney at Law
                                             Texas Bar No. 24012206
                                             207 East Hiram Street
                                             Atlanta, Texas 75551
                                             Tel: 903.799.7779
                                             Fax: 903.799.7771
                                             clint@clintallenlaw.com

                                             Attorney for Appellant


                     ORAL ARGUMENT REQUESTED




                                      -!1-
                          IDENTITY OF PARTIES AND COUNSEL

       Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a complete list of

all parties to the trial court’s judgment and the names and addresses of all trial and appellate

counsel:

       1.     Appellant

              Kennedy Dewayne Riley

       2.     Appellant’s Trial Counsel:

              Mr. Rick Shumaker
              Bowie County Public Defender’s Office
              424 West Broad Street
              Texarkana, Texas 75501

       3.     Appellant’s Appellate Counsel:

              Mr. Clint E. Allen
              Attorney at Law
              207 East Hiram Street
              Atlanta, Texas 75551

       4.     Appellee:

              The State of Texas

       5.     Appellee’s Trial Counsel:

              Mr. Michael Shepherd
              Ms. Lauren Sutton
              Assistant Criminal District Attorneys
              601 Main Street
              Texarkana, Texas 75501

       6.     Appellee’s Appellate Counsel:

              Ms. Lauren Sutton
              Assistant Criminal District Attorney
              601 Main Street
              Texarkana, Texas 75501


                                              -!2-
                                    TABLE OF CONTENTS

Identity of Parties and Counsel……………………………………………………………………2

Table of Contents………………………………………………………………………………….3

Index of Authorities……………………………………………………………………………….5

Statement of the Case…………………………………………………………………………. 8-9

Issues Presented…………………………………………………………………………………10

Statement Regarding Oral Argument……………………………………………………………11

Statement of Facts……………………………………………………………………………….12

Summary of the Argument………………………………………………………………………20

Argument……………………………………………………………………………………….. 23

       ISSUE NO. 1: The evidence was legally insufficient to support Appellant’s conviction
for Capital Murder……………………………………………………………………………… 23

       ISSUE NO. 2: The trial court erred when it denied Appellant’s Motion for Instructed
Verdict……………………………………………………………………………………………23

       ISSUE NO. 3: The Trial Court erred when it denied Appellant his right to cross examine
Alicia Green regarding all aspects of her plea agreement with the State………………………. 30

       ISSUE NO. 4: The Trial Court erred when it denied Appellant his right to cross examine
Kennial Jacobs regarding her pending charge of Unauthorized Use of a Motor
Vehicle………………………………………………………………………………………….. 36

       ISSUE NO. 5:       The trial court erred when it admitted an audiotape tape allegedly
containing a telephone conversation between Alicia Green and Appellant because a proper
foundation for its admissibility was not established…………………………………………….40

        ISSUE NO. 6. Appellant suffered egregious harm because the jury charge failed to
properly apply the accomplice witness instruction in the abstract portion of the charge to the facts
of the case in the application portion of the charge……………………………………………..44

Prayer……………………………………………………………………………………………48




                                                -!3-
Certificate of Service……………………………………………………………………………49

Certificate of Compliance……………………………………………………………………….49




                          -!4-
                                INDEX OF AUTHORITIES

CASES:

Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994)……………………………………44-45

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)…………………………………….. 45

Arline v. State, 721 S.W.2d 348 (Tex. Crim. App. 1986)……………………………………….. 45

Barnes v. State, 56 S.W.3d 221 (Tex.App.-Fort Worth 2001, pet. ref’d)……………………. 26-27

Brewer v. State, 126 S.W.3d 295 (Tex. App. - Beaumont 2004, pet. ref’d)…………………. 27-28

Brooks v. State, 323 S.W.3d 893 (Tex. Crime. App. 2010)………………………………………23

Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008)………………………………………..24

Burkhalter v. State, 493 S.W.2d 214 (Tex. Crim. App. 1973)………………………………….. 38

Bustamante v. State, 106 S.W.3d 738 (Tex. Crim. App. 2003)…………………………………. 28

Castillo-Fuentes v. State, 707 S.W.2d 559 (Tex. Crim. App. 1986)……………………………..47

Cathey v. State, 992 S.W.2d 460 (Tex. Crim. App. 1999)……………………………………….25

Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001)………………………………………. 28

Cox v. State, 830 S.W.2d 609 (Tex. Crim. App. 1992)…………………………………………..25

Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974)………….35, 38

Delaware v. Van Arsdall, 475 U.S. 673 (1986)…………………………………………….. 35, 39

Dillion v. State, 574 S.W.2d 92 (Tex. Crim. App. 1978)……………………………………….. 28

Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)…………………………………44

Dues v. State, 634 S.W.2d 304 (Tex. Crim. App. 1982)…………………………………………28

Ex Parte Reynolds, 588 S.W.2d 900 (Tex. Crim. App. 1979), cert. denied Texas v. Reynolds, 445
       U.S. 920, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980)………………………………………27

Golden v. State, 851 S.W.2d 291 (Tex. Crime. App. 1993)…………………………………….. 25


                                             -!5-
Gray v. State, 152 S.W.3d 125, 127-28 (Tex. Crim. App. 2004)……………………………… 45

Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004)……………………………………..28

Hill v. State, 30 S.W.3d 505 (Tex. App. - Texarkana 2000, no pet.)……………………………47

Jackson v. State, 575 S.W.2d 567 (Tex. Crim. App. 1979)……………………………..30, 36, 41

Jackson v. Virginia, 443 U.S. 307 (1979)……………………………………………………….23

Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001)……………………………………..43-44

Johnson v. State, 698 S.W.2d 154 (Tex. Crim. App. 1985),
      cert. denied, 107 S.Ct. 239 (1986)…………………………………………….. 30, 36, 41

Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998)…………………………………… 43

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)……………………………………….. 43

Maldonado v. State, 998 S.W.2d 239 (Tex. Crim. App. 1999)…………………………………28

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)……………………………………….45

Malone v. State, 253 S.W.3d 253 (Tex. Crim. App. 2008)……………………………………..24

Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995)…………………………………27

Meyer v. State, 519 S.W.2d 868 (Tex. Crim. App. 1975)………………………………………38

Parker v. State, 657 S.W.2d 137 (1983)………………………………………………………..34

Patrick v. State, 906 S.W.2d 481 (Tex. Crime. App. 1995)…………………………………….28

Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996)…………………………………..45

Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995)………………………………………….28

Sanchez v. State, 209 S.W.3d 117 (Tex. Crim. App. 2006)……………………………………..47

Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997)……………………………30, 36, 41

Schutz v. State, 63 S.W.3d 442 (Tex. Crim. App. 2001)……………………………………..43-44

Shelby v. State, 819 S.W.2d 544 (Tex. Crim. App. 1991)……………………………………35-39


                                      -!6-
Simmons v. State, 282 S.W.3d 504 (Tex. Crim. App. 2009)……………………………………25

Simmons v. State, 548 S.W.2d 386 (Tex. Crim. App. 1977)………………………………..34, 38

Skillern v. State, 890 S.W.2d 849 (Tex. App. - Austin 1994, pet. ref’d)………………………. 28

Smith v. State, 109 S.W.3d 80 (Tex. App. - Texarkana 2003, no pet.)………………………….23

Smith v. State, 332 S.W.3d 425 (Tex. Crim. App. 2011)…………………………………….24-25

Spain v. State, 585 S.W.2d 705 (Tex. Crim. App. 1979)………………………………………..35

Taylor v. State, 146 S.W.3d 801 (Tex. App. - Texarkana 2004, pet. ref’d)……………………..47

Tucker v. State, 771 S.W.2d 523 (Tex. Crim. App. 1988), cert. denied, 492 U.S. 912,
       109 S.Ct. 3230, 106 L.Ed.2d 578 (1989)…………………………………………….26-27

United States v. Mayer, 556 F.2d 245 (5th Cir. 1977)……………………………………….34, 38

Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986)……………………………….30, 36, 41

Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996)……………………………………..23

STATUTES:

TEX. CODE CRIM. PRO. art. 38.14……………………………………………………………24-25

TEX. PENAL CODE §19.02……………………………………………………………………… 28

TEX. PENAL CODE §19.03……………………………………………………………….. 8, 24, 26

TEX. PENAL CODE §29.02……………………………………………………………………….24

TEX. R. APP. P. 44.2…………………………………………………………………………….. 43

TEX. R. EVID. 901……………………………………………………………………………41-43




                                         -!7-
                                CAUSE NO. 06-15-00104-CR

                             IN THE SIXTH COURT OF APPEALS

                                   TEXARKANA, TEXAS

______________________________________________________________________________

KENNEDY DEWAYNE RILEY,
                                                                                       Appellant

VS.


THE STATE OF TEXAS,
                                                                       Appellee
______________________________________________________________________________

                     On Appeal from Cause No. 13F0131-202 in the
                  202nd Judicial District Court of Bowie County, Texas
______________________________________________________________________________

                                BRIEF OF APPELLANT
______________________________________________________________________________


                                STATEMENT OF THE CASE

       Nature of the case:   This is an appeal from a conviction for the offense of Capital

Murder pursuant to Texas Penal Code 19.03, a Capital Felony (C.R. 5, 19).

       Judge/Court:          Hon. Leon F. Pesek, Jr., sitting in the 202nd Judicial District Court

of Bowie County, Texas (C.R. 5; R.R. Vol. 1 pg. 1).

       Plea:                 Appellant entered a plea of “not guilty”. (R.R. Vol. 4 pg. 11).

       Trial Disposition:    The case was tried to a jury which found Appellant “guilty” of the

offense of Capital Murder (R.R. Vol. 6 pg. 48). Punishment was automatically assessed at Life




                                              -!8-
without parole in the Institutional Division of the Texas Department of Criminal Justice since the

State had earlier elected not to seek the death penalty. (C.R. pg. 90; R.R. Vol. 6 pgs. 50, 52).




                                                 -!9-
                                 ISSUES PRESENTED

ISSUE NO. 1:       The evidence was legally insufficient to support Appellant’s conviction
for Capital Murder

ISSUE NO. 2:        The trial court erred when it denied Appellant’s Motion for Instructed
Verdict

ISSUE NO. 3:        The Trial Court erred when it denied Appellant his right to cross
examine Alicia Green regarding all aspects of her plea agreement with the State

ISSUE NO. 4:      The Trial Court erred when it denied Appellant his right to cross
examine Kennial Jacobs regarding her pending charge of Unauthorized Use of a Motor
Vehicle

ISSUE NO. 5:         The trial court erred when it admitted an audiotape tape allegedly
containing a telephone conversation between Alicia Green and Appellant because a proper
foundation for its admissibility was not established

ISSUE NO. 6.           Appellant suffered egregious harm because the jury charge failed to
properly apply the accomplice witness instruction in the abstract portion of the charge to
the facts of the case in the application portion of the charge




                                           -!10-
                       STATEMENT REGARDING ORAL ARGUMENT

          Oral argument would assist the Court in considering numerous issues raised in the Brief.

More specifically, oral argument would be helpful in resolving fact intensive harm analysis

issues.




                                                -!11-
                                 STATEMENT OF THE FACTS

       Troydricus Lamar Robinson (hereinafter “Mr. Robinson”) was found lying, and bleeding,

in a grassy area adjacent to 1021 Brown Street, Wake Village, Texas, on the night of August 28,

2012. (R.R. Vol. 4 pgs. 57-58). Police officers were dispatched to the area pursuant to a 911 call

from Joe Frost who resided at 1021 Brown Street. (R.R. Vol. 4 pgs. 23, 25). Prior to collapsing

in the grassy area, Mr. Robinson had banged on Mr. Frost’s front door leading Mr. Frost to

believe that a home invasion was imminent. (R.R. Vol. 4 pg. 30).

       Mr. Frost testified that, when he saw a police patrol unit coming down the street, he went

outside and walked down his driveway and observed Mr. Robinson lying there. (R.R. Vol. 4 pgs.

33-34). Mr. Frost asked Mr. Robinson who had done this to him. (R.R. Vol. 4 pg. 46). Mr.

Robinson replied “a woman and a man with a do-rag.” (R.R. Vol. 4 pg. 46). Mr. Frost testified

that Mr. Robinson said the actors had come into his home at 1024 Brown Street. (R.R. Vol. 4 pg.

46). Mr. Frost further testified that he did not initially tell police officers that Mr. Robinson had

made any statements to him. (R.R. Vol. 4 pgs. 53-54).

       Officer Rusty McDuffie testified that he arrived on the scene and observed Mr. Robinson

laying in the grass near the curb at 1021 Brown Street. (R.R. Vol. 4 pg. 58). Officer McDuffie

asked Mr. Robinson if he was okay, and Mr. Robinson replied that he had been shot. (R.R. Vol. 4

pg. 65). Mr. Robinson also told Officer McDuffie that “old boy, old girl set him up, he had been

robbed.” (R.R. Vol. 4 pg. 65). Officer Foster arrived shortly thereafter, and Officer McDuffie

went across the street to clear the residence. (R.R. Vol. 4 pg. 74). Officer McDuffie further

testified that his report did not include information that Mr. Robinson told the officer that an “old

boy” had shot him. (R.R. Vol. 4 pg. 79). The only information concerning Mr. Robinson’s




                                                -!12-
statements that Officer McDuffie included in his report was that Mr. Robinson stated a female

had set him up. (R.R. Vol. 4 pg. 80).

       Officer Jacob Foster arrived on the scene and observed a black male lying on his back in

the yard at 1021 Brown Street. (R.R. Vol. 4 pg. 91). Officer Foster was able to observe a

gunshot wound in Mr. Robinson’s back. (R.R. Vol. 4 pg. 94). In response to questioning from

Officer Foster, Mr. Robinson stated that “a black female wearing a purple shirt and stockings and

a black male wearing a white tank-top, black shorts, and a black bandana, do-rag” had done this

to him. (R.R. Vol. 4 pg. 94). Officer Foster further testified that Mr. Robinson stated that “she

set me up, he shot me.” (R.R. Vol. 4 pgs. 94-95).

       James Guyton testified that he is the fire chief for the City of Wake Village. (R.R. Vol. 4

pg. 103). Mr. Guyton arrived on the scene and assisted the EMS personnel with placing a re-

breather on Mr. Robinson. (R.R. Vol. 4 pg. 106). Mr. Guyton testified that Mr. Robinson told

him “the bitch set me up.” (R.R. Vol. 4 pg. 109). Mr. Guyton further testified that Mr. Robinson

told him “he had on a bandana and a beater.” (R.R. Vol. 4 pg. 109). Mr. Robinson attempted to

give Mr. Guyton a name which sounded like “Tisha” to Mr. Guyton. (R.R. Vol. 4 pg. 110). Mr.

Guyton testified that Mr. Robinson never stated whether the actor and/or actors were black or

white. (R.R. Vol. 4 pg. 115).

       Shameetrice Gomer testified that she knows Appellant through her boyfriend, LaJonte

James. (R.R. Vol. 4 pg. 157). Appellant and Alicia Green came to Ms. Gomer’s home on the

evening of August 28, 2012, at approximately 9:00 p.m. (R.R. Vol. 4 pg. 159). Appellant and

Ms. Green stayed for forty-five minutes to an hour and left. (R.R. Vol. 4 pg. 159). They arrived

in Appellant’s car. (R.R. Vol. 4 pgs. 160-61). Appellant was wearing a white tank-top with blue

jean shorts, and Alicia was wearing leg tights. (R.R. Vol. 4 pg. 162).

                                               -!13-
       Lajonte James also testified that Appellant and Alicia Green came to his home in

Appellant’s vehicle on August 28, 2012. (R.R. Vol. 4 pg. 174). Appellant and Ms. Green stayed

for about forty-five minutes to an hour (R.R. Vol. 4 pg. 175). Mr. James received a telephone

call from Appellant around 11:00 p.m. (R.R. Vol. 4 pg. 176). Appellant wanted Mr. James to

pick him up, but Mr. James’s car was in the paint shop. (R.R. Vol. 4 pg. 176). Mr. James read a

portion of a letter for the jury that he had received from Appellant in which Appellant was

attempting to remind him of the sequence of events on August 28, 2012 (although the State

suggested it was an attempt to construct an alibi).       (R.R. Vo. 4 pgs. 180-81).         On cross-

examination, Lajonte James admitted that he has no idea where Appellant went after Appellant

left his home, and he has no evidence that Appellant was involved in the death of Mr. Robinson.

(R.R. Vol. 4 pg. 183-84).

       Gary Stringer testified that he is a retired police officer. (R.R. Vol. 4 pg. 192). Mr.

Stringer’s home is approximately two blocks away from 1024 Brown Street. (R.R. Vol. 4 pg.

195). Mr. Stringer saw a vehicle park in front of his neighbor’s home across the street from Mr.

Stringer’s residence. (R.R. Vol. 4 pg. 196). Mr. Stringer observed a black male standing at the

back of the vehicle. (R.R. Vol. 4 pg. 197). The black male was wearing a white tank-top and

black shorts, and he appeared to be between 5’7” and 5’9” tall. (R.R. Vol. 4 pg. 198). Mr.

Stringer testified that the vehicle he observed that night was a grayish Caprice with out of state

license plates that ended in what looked like “Z67”.        (R.R. Vol. 4 pg. 200).     Mr. Stringer

identified State’s Exhibit 34 as the vehicle he saw that night. (R.R. Vol. 4 pg. 200-01).

       Dr. Janice Townsend-Parchman testified that she is forensic pathologist employed as a

medical examiner by Dallas County. (R.R. Vol. 5 pg. 16). Dr. Townsend-Parchman testified that

Mr. Robinson died as a result of a gunshot wound through the chest. (R.R. Vol. 5 pg. 19).

                                               -!14-
       Ronny Sharp is the Chief of Police for the City of Wake Village. (R.R. Vol. 5 pg. 29).

Chief Sharp was notified by Sgt. Jody Stubbs on August 28, 2012, that there had been a shooting

at 1024 Brown Street. (R.R. Vol. 5 pg. 31). The officers on scene gave Chief Sharp an overview

of what they knew at the time. (R.R. Vol. 5 pg. 31). Chief Sharp testified that a cell phone was

recovered at the scene, so a grand jury subpoena was requested from the District Attorney’s

office to obtain the records from the cell phone. (R.R. Vol. 5 pg. 37). Chief Sharp was able to

trace one particular phone number to Alicia Green. (R.R. Vol. 5 pgs. 37-38). Chief Sharp was

able to make contact with Kennial Jacobs, who is Ms. Green’s mother, and Ms. Jacobs confirmed

the telephone number belonged to her daughter, Alicia Green. (R.R. Vol. 5 pgs. 38-39). Chief

Sharp made contact with Ms. Jacobs at a residence owned by another of Ms. Jacobs’s daughters,

and while he was there Alicia Green and Appellant arrived in Appellant’s vehicle. (R.R. Vol. 5

pgs. 39-40). Appellant and Ms. Green were interviewed at the Wake Village Police Department,

and both denied involvement in the death of Mr. Robinson. (R.R. Vol. 5 pgs. 42-43). Because

Ms. Green implicated her mother, Ms. Jacobs, in her movements on the night of Mr. Robinson’s

death, Chief Sharp interviewed Ms. Jacobs further about Ms. Green’s activities on that night and

she told Chief Sharp that Ms. Green’s story was not true. (R.R. Vol. 5 pg. 45). Chief Sharp

arrested Ms. Green on outstanding warrants out of Texarkana, Texas, and Ms. Green

subsequently admitted that she and Appellant were both present at the scene. (R.R. Vol. 5 pg.

46). Chief Sharp obtained an arrest warrant for Appellant based upon the information provided

to him by Ms. Green, and he was taken into custody a short time later on or about September 26,

2012. (R.R. Vol. 5 pg. 48). Chief Sharp interviewed Appellant at the Bi-State Justice Center,

and portions of that recorded interview were played for jury. (R.R. Vol. 5 pgs. 53-54). Appellant

did not provide Chief Sharp with any information as it related to Appellant’s activities the night

                                              -!15-
of August 28, 2012. (R.R. Vol. 4 pg. 57). Chief Sharp was able to recover a “wife-beater” t-shirt

from Ms. Jacobs who had advised Chief Sharp that the t-shirt was in the back of her vehicle.

(R.R. Vol. 5 pgs. 58-59). Ms. Jacobs advised Chief Sharp that the t-shirt was in Appellant’s

possession on the night she picked up Appellant and Ms. Green in Wake Village. (R.R. Vol. 5

pg. 58). Chief Sharp also received into evidence a recorded telephone call from Ms. Green (who

was still incarcerated at the Bi-State Justice Center) to Appellant.   (R.R. Vol. 5 pg. 64)(the

recording was not admitted into evidence or played during Chief Sharp’s testimony)(R.R. Vol. 5

pg. 67). Chief Sharp testified that Alicia Green entered a plea of “guilty” to the offense of

murder in relation to Mr. Robinson’s death. (R.R. Vol. 5 pg. 67). Ms. Green agreed to a twenty

year sentence. (R.R. Vol. 5 pg. 67).

       On cross-examination, Chief Sharp admitted that the only witness he had who put

Appellant inside the home at 1024 Brown Street was Alicia Green. (R.R. Vol. 5 pg. 69). Chief

Sharp further admitted that his investigation was largely based upon the statements of Alicia

Green and her mother, Kennial Jacobs, both of whom lied to him repeatedly. (R.R. Vol. 5 pgs.

74-75). Chief Sharp did not interview Appellant’s mother, whom Appellant stated he was with

that night. (R.R. Vol. 5 pg. 76). Chief Sharp could not testify that Appellant was driving his

vehicle on the night of Mr. Robinson’s death. (R.R. Vol. 5 pg. 79).

       Alicia Green testified that she was the co-defendant in this case and that, based upon the

support and advice of her attorney she changed her plea to “guilty” in exchange for a sentence of

twenty years for the offense of murder. (R.R. Vol. 5 pg. 95). Ms. Green testified that the only

individuals present at 1024 Brown Street on the night of August 28, 2012, were her, Appellant,

and Mr. Robinson. (R.R. Vol. 5 pg. 100). Ms. Green was shown State’s Exhibit 34, and she

identified it as Appellant’s vehicle. (R.R. Vol. 5 pgs. 101-02). Ms. Green testified that she was

                                              -!16-
with Appellant all day on August 28, 2012. (R.R. Vol. 5 pg. 103). There was a discussion about

locating marijuana to smoke, and Ms. Green thought about Mr. Robinson as a possible source.

(R.R. Vol. 5 pg. 103).     Ms. Green testified that Mr. Robinson agreed to provide her with

marijuana in exchange for sex. (R.R. Vol. 5 pg. 104). Ms. Green testified that Appellant was

upset when he learned that Mr. Robinson wanted to trade marijuana for sex. (R.R. Vol. 5 pg.

104). A plan was developed for Ms. Green to “chill” with Mr. Robinson and try to find out

where he kept his “stash”. (R.R. Vol. 5 pg. 105). Ms. Green testified that the plan was for Mr.

Robinson to be robbed of his “stash”, i.e. money and/or drugs. (R.R. Vol. 5 pg. 105). Ms. Green

testified that Appellant actively participated in setting up this plan. (R.R. Vol. 5 pg. 105). Ms.

Green testified to some doubts about the success of the plan since Mr. Robinson knew her, but

Appellant stated he would have to shoot him. (R.R. Vol. 5 pg. 106). Ms. Green and Appellant

went to Lajonte James’s (“Pep”) apartment around 9:30, and they stayed for about 30 minutes.

(R.R. Vol. 5 pg. 107). After they left, contact was made with Mr. Robinson, and he gave Ms.

Green the address where he was staying. (R.R. Vol. 5 pg. 108). Ms. Green and Appellant drove

by the house “scoping it out”, and Appellant stated “this is the lick right here.” (R.R. Vol. 5 pg.

108). Ms. Green testified that language meant they were going to rob the house. (R.R. Vol. 5 pg.

109). Appellant dropped Ms. Green off at the house, and drove off. (R.R. Vol. 5 pg. 110). Ms.

Green went inside and smoke a “blunt”. (R.R. Vol. 5 pg. 110). Ms. Green continued to text both

Mr. Robinson (even though she was sitting next to him on the couch) and Appellant. (R.R. Vol. 5

pgs. 111-12). Appellant came through the back door with a gun pointed at Mr. Robinson, and he

demanded that Mr. Robinson get on the ground. (R.R. Vol. 5 pg. 113). Ms. Green testified that

Appellant was wearing a “white wife-beater with some black shorts.” (R.R. Vol. 5 pg. 114). Ms.

Green testified that money was demanded from Mr. Robinson, but he stated he only had forty

                                               -!17-
dollars.     (R.R. Vol. 5 pg. 116).   It became apparent, according to Ms. Green, that she and

Appellant knew each other. (R.R. Vol. 5 pg. 117). Ms. Green testified that Mr. Robinson got up

and ran towards the front door, and Appellant shot him. (R.R. Vol. 5 pg. 117). Both Ms. Green

and Appellant ran out the back door. (R.R. Vol. 5 pg. 119). They both ran until they ended up on

Guam Street next to some apartments. (R.R. Vol. 5 pg. 121). They ended up near a gym. (R.R.

Vol. 5 pg. 122). Appellant called Lajonte James to come get them, but Mr. James would not

come out there. (R.R. Vol. 5 pg. 125). Ms. Green called her mother to come get them. (R.R.

Vol. 5 pg. 125). Ms. Green’s mother arrived in a blue Blazer. (R.R. Vol. 5 pg. 126). Ms. Green

testified that Appellant took off his shirt and put on another shirt.      (R.R. Vol. 5 pg. 127).

Appellant put the “wife-beater” in the back of the truck. (R.R. Vol. 5 pg. 127). Ms. Jacobs took

Appellant to retrieve his car on Brown Street. (R.R. Vol. 5 pg. 128). Appellant drove off with

Ms. Jacobs following him. (R.R. Vol. 5 pg. 129). Appellant stopped on New Boston Road near a

Family Dollar store, and Ms. Green got back into Appellant’s car. (R.R. Vol. 5 pg. 129). The

next morning, Appellant dropped Ms. Green off at her sister’s house. (R.R. Vol. 5 pg. 130). Ms.

Green testified about being arrested for some old traffic tickets, speaking with Chief Sharp, and

calling Appellant from the Bi-State Justice Center. (R.R. Vol. 5 pg. 131-32). A recording of the

telephone call was played for the jury. (R.R. Vol. 5 pg. 134-35).

           On cross-examination Ms. Green testified that she knew her mother labeled her a habitual

liar. (R.R. Vol. 5 pg. 136). Ms. Green testified that her mother does not like Appellant. (R.R.

Vol. 5 pg. 136). Ms. Green also testified that she had not previously mentioned that Appellant

had changed shirts. (R.R. Vol. 5 pg. 137).

           Kennial Jacobs testified that she saw Appellant and Ms. Green together on August 28,

2012. (R.R. Vol. 5 pg. 159). Ms. Jacobs testified that Ms. Green called her about 9:00 or 10:00

                                                 -!18-
that night to come pick her and Appellant up in Wake Village. (R.R. Vol. 5 pg. 160). Ms. Green

stated they were on Guam Street. (R.R. Vol. 5 pg. 160-61). Ms. Green got in the front seat, and

Appellant got in the back. (R.R. Vol. 5 pg. 162). Ms. Green was wearing black tights and a light

top, and Appellant was wearing dark blue jean shorts and a white “wife-beater”. (R.R. Vol. 5 pg.

162). Appellant took off his tank top and put on another shirt. (R.R. Vol. 5 pg. 163). Appellant

began giving Ms. Jacobs directions to where his car was parked on Brown Street. (R.R. Vol. 5

pgs. 164-65). Appellant retrieved his car, and Ms. Jacobs followed him back up Westlawn Drive

until he stopped and Ms. Green got back into Appellant’s car with him.        (R.R. Vol. 5 pgs.

165-66). Ms. Jacobs gave Chief Sharp a statement, and she told Chief Sharp that Ms. Green had

lied to him about her whereabouts. (R.R. Vol. 5 pgs. 168-69).

       On cross-examination Ms. Jacobs testified that she does not like Appellant, and she

wanted him to stay away from her daughter. (R.R. Vol. 5 pgs. 173-74). She also testified that

she would do whatever it took to keep him away from her daughter. (R.R. Vol. 5 pg. 174).




                                              -!19-
                              SUMMARY OF THE ARGUMENT

ISSUE NO. 1: The evidence was legally insufficient to support Appellant’s conviction for
Capital Murder

ISSUE NO. 2:       The trial court erred when it denied Appellant’s Motion for Instructed
Verdict

       After eliminating the testimony of Alicia Green from consideration because she was an

accomplice as a matter of law, the alleged corroborating evidence is insufficient as tending to

connect Appellant to the offense and likely would only suggest his “mere presence” in the area.

Likewise, the State failed to meet its burden of proof in terms of the underlying offense of

robbery because the record is almost entirely devoid of any evidence, apart from Alicia Green’s

testimony, tending to suggest a robbery and/or tending to establish the specific intent required to

prove a robbery.

ISSUE NO. 3: The Trial Court erred when it denied Appellant his right to cross examine
Alicia Green regarding all aspects of her plea agreement with the State

       The State was permitted to leave the jury with a false impression that Alicia Green agreed

to testify for the State without any preconceived ideas or information as to what she would

receive in return for her favorable testimony. Appellant was denied his right to effectively cross

examine Alicia Green to fully expose her bias and motive to testify favorably for the State. The

error was harmful beyond a reasonable doubt because a conviction would not have been possible

without Alicia Green’s testimony.

ISSUE NO. 4: The Trial Court erred when it denied Appellant his right to cross examine
Kennial Jacobs regarding her pending charge of Unauthorized Use of a Motor Vehicle

       Kennial Jacobs was the second most important witness to the State’s case, and Appellant

was denied his right to impeach her credibility by cross examining her about her pending charge



                                               -!20-
of unauthorized use of a motor vehicle. Appellant should have been allowed great latitude in

showing any fact that would tend to establish bias or motive to testify favorably for the State.

Although the trial court had a transcript of the previous trial and stated that Ms. Jacobs’

testimony was consistent with it, the jury is the judge of witness demeanor and credibility.

Because the jury could not have known of her previous testimony, the trial court erred, and its

error was harmful beyond a reasonable doubt because Ms. Jacobs was the only witness who

could corroborate key parts of Alicia Green’s testimony, and Ms. Jacobs’ testimony contributed

significantly to Appellant’s conviction.

ISSUE NO. 5:      The trial court erred when it admitted an audiotape tape allegedly
containing a telephone conversation between Alicia Green and Appellant because a proper
foundation for its admissibility was not established

       The State failed to properly authenticate the telephone recording of an alleged

conversation between Alicia Green and Appellant. Chief Sharp first testified that he had listened

to the recording, that it was recorded on a device capable of making an accurate recording and

that it was an accurate recording, and the voices on the tape were those of Alicia Green and

Appellant. Chief Sharp then completely contradicted himself when defense counsel took him on

voir dire by testifying that he had no personal knowledge of most of the testimony he had just

given on direct examination.        Although Alicia Green testified that it was a telephone

conversation between Appellant and her, her testimony should be set aside in the court’s review

of this issue because she was an accomplice as a matter of law, and her testimony is inherently

untrustworthy.    There is insufficient corroborating evidence to authenticate the telephone

recording, and the trial court erred in admitting it. The admission of the recording was harmful

to Appellant beyond a reasonable doubt.




                                              -!21-
ISSUE NO. 6. Appellant suffered egregious harm because the jury charge failed to
properly apply the accomplice witness instruction in the abstract portion of the charge to
the facts of the case in the application portion of the charge

       The jury charge was confusing with its various legal definitions and mens rea’s. The jury

charge failed to instruct the jury in the application paragraphs how it was to properly apply the

law given to it in the abstract paragraphs in terms of Alicia Green’s testimony and any alleged

corroborating evidence. This error in the jury charge egregiously harmed Appellant because he

could not have been convicted without Alicia Green’s testimony.




                                              -!22-
                                          ARGUMENT

ISSUE NO. 1: The evidence was legally insufficient to support Appellant’s conviction for
Capital Murder

ISSUE NO. 2:      The trial court erred when it denied Appellant’s Motion for Instructed
Verdict

       1.      Standard of Review

       Appellate courts should no longer conduct separate legal and factual sufficiency reviews

in criminal cases.   See Brooks v. State, 323 S.W.3d 893 (Tex. Crime. App. 2010).            Rather,

appellate courts in criminal cases should simply conduct the sufficiency standard under Jackson

v. Virginia, 443 U.S. 307 (1979). Brooks, 323 S.W.3d at 893. Under a legal-sufficiency review,

the reviewing court must view the evidence in the light most favorable to the jury's verdict and

then determine whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.   See Jackson, 443 U.S. at 319.   This “familiar standard gives

full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. 

Faced with a record of historical facts that support conflicting inferences, the reviewing court

“must presume that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.”      See Jackson, 443 U.S. at 326.         A “mere modicum” of

incriminating evidence cannot “by itself rationally support a conviction beyond a reasonable

doubt.”   See Jackson, 443 U.S. at 319.

       In terms of a motion for instructed verdict, “[a] point of error complaining about a trial

court’s failure to grant a motion for directed verdict is a challenge to the legal sufficiency of the

evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Smith v. State, 109

S.W.3d 80, 81 (Tex. App. - Texarkana 2003, no pet.).

                                                -!23-
       2.      Argument and Analysis

               (a)    Elements of the offense

       A person commits capital murder if he intentionally causes the death of an individual in

the course of committing or attempting to commit robbery. TEX. PENAL CODE §19.03(a)(2).

       A person commits robbery if, in the course of committing theft and with intent to obtain

or maintain control of the property he intentionally, knowingly, or recklessly causes bodily injury

to another. TEX. PENAL CODE 29.02.

               (b)    Accomplice witness rule

       Article 38.14 of the Texas Code of Criminal Procedure states that “[a] conviction cannot

be had upon the testimony of an accomplice unless corroborated by other evidence tending to

connect the defendant with the offense committed; and the corroboration is not sufficient if it

merely shows the commission of the offense.” TEX CODE CRIM. PRO. art. 38.14.

       In this case, Alicia Green was an accomplice as a matter of law. (R.R. Vol. 6 pg. 13)(C.R.

66).

       In reviewing the sufficiency of the corroborating evidence, the reviewing court is to

exclude the accomplice testimony from consideration and determine whether there is any

independent evidence that tends to connect the defendant with the commission of the offense.

Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). The corroborating evidence is

viewed in the light most favorable to the jury's verdict. Brown v. State, 270 S.W.3d 564, 567

(Tex. Crim. App. 2008). If there are two views of the evidence, one tending to connect the

accused to the offense and the other not, the reviewing court is to defer to the jury's view. Smith

v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). "[I]t is not appropriate for appellate

courts to independently construe the non-accomplice evidence." Id.        It is not necessary that

                                               -!24-
corroborating evidence directly connect a defendant to an offense or be sufficient by itself to

establish guilt. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). The evidence

must simply link the accused in some way to the commission of the offense and show that

rational jurors could conclude that the evidence sufficiently tended to connect the accused to the

offense. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). The corroborating

evidence may be direct or circumstantial. See Smith, 332 S.W.3d at 442.

              (c)    Any alleged corroborating evidence is insufficient to support
Appellant’s conviction

       There is insufficient evidence to connect Appellant to the offense of capital murder. After

eliminating the testimony of Alicia Green from consideration the State can only show mere

presence in the area of the alleged offense. The alleged corroborating evidence that tends to

connect Appellant to the crime is insufficient. See Cox v. State, 830 S.W.2d 609 (Tex. Crim.

App. 1992); TEX. CODE CRIM. PRO. art. 38.14.

       Gary Stringer testified that he observed a vehicle, which he identified at trial as

Appellant’s vehicle, parked across the street from his home. (R.R. Vol. 4 pgs. 200-01).

       Kennial Jacobs testified that she picked up her daughter, Alicia Green, and Appellant in

another area of Wake Village on the night of the alleged offense and took them back to

Appellant’s vehicle on Brown Street. (R.R. Vol. 5 pgs. 160-62).

       Mere presence of a defendant at the scene of a crime is insufficient to corroborate

accomplice testimony. Golden v. State, 851 S.W.2d 291, 294 (Tex. Crime. App. 1993).         Chief

Ronny Sharp testified that the only evidence he had that places Appellant inside of Mr.

Robinson’s home was the statement of Alicia Green. (R.R. Vol. 5 pg. 69).

       The other alleged corroborating evidence is, likewise, insufficient:


                                               -!25-
       1) Statements from Troydricus Robinson that an “old boy” and an “old girl” set
him up, he had been robbed; it was a “woman and a man with a do-rag”; that “she set me
up, he shot me”; that the female was wearing a purple shirt and stockings and the male was
wearing a white tank top, black shorts, and a bandana or do-rag; and that “the b**** set
me up”.

       Disregarding the testimony of Alicia Green, none of these statements tend to connect

Appellant to the offense. On the contrary, Troydricus Robinson’s statements tend to show, at

best, only that an unknown male and female committed the offense.

       2) Testimony that Appellant and Alicia Green were together before and after the
offense.

       This testimony does not tend to connect Appellant to the offense because Alicia Green

and Appellant were in a relationship (R.R. Vol. 5 pgs. 97-98) so it would not be out of the

ordinary for them to be together at those times.

       3) Appellant is alleged to have been wearing similar clothing to the perpetrator.

       This evidence is insufficient because, although Appellant may have been wearing similar

clothing on the day of the offense, there is other testimony in the record that establishes that type

of clothing is common attire in the summertime (R.R. Vol. 4 pgs. 99-100).

       Furthermore, there was no evidence of Appellant’s intent and no evidence apart from the

testimony of Alicia Green that Appellant possessed a gun (as tending to suggest an “intent”) on

the date of the offense. In a prosecution for capital murder under penal code section 19.03(a)(2),

in order to convict the accused . . . the State must prove and the jury must find that he

"intentionally commit[ted] the murder" in the course of the underlying felony. TEX. PENAL

CODE § 19.03(a)(2); Tucker v. State, 771 S.W.2d 523, 530 (Tex. Crim. App. 1988), cert. denied,

492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989); Barnes v. State, 56 S.W.3d 221, 226

(Tex.App.-Fort Worth 2001, pet. ref'd). The court of criminal appeals has held that "[o]ne could


                                                -!26-
hardly indulge an intent to promote or assist in the commission of an intentional murder without,

at a minimum, intending or contemplating that lethal force would be used." Barnes, 56 S.W.3d

at 236 (citing Tucker, 771 S.W.2d at 530). Setting aside the testimony of Alicia Green as this

court is required to do, there is no evidence of Appellant’s intent to commit murder or the

underlying offense of robbery.

       Based upon the insufficiency of the evidence in this matter, this Court should order an

acquittal. Where the reviewing court finds that there was insufficient evidence, apart from the

accomplice testimony, to tend to connect the defendant to the crime, the accomplice testimony

must be disregarded, and the court must order acquittal. See Ex Parte Reynolds, 588 S.W.2d

900, 902 (Tex. Crim. App. 1979), cert. denied Texas v. Reynolds, 445 U.S. 920, 100 S.Ct. 1284,

63 L.Ed.2d 605 (1980).

               (d)    There is insufficient evidence of the underlying offense of Robbery

       In the alternative, no evidence was presented by the State to satisfy its burden to prove

the underlying offense of robbery. Again, setting aside the testimony of Alicia Green, the only

mention of “robbery” in the record was from Mr. Robinson when he stated, “old boy, old girl set

him up, he had been robbed.” (R.R. Vol. 4 pg. 72). Furthermore, Mr. Robinson’s statements that

he had been “set up” (R.R. Vol. 4 pg. 5) do not rise to the level of proof required of the State

because that statement could be subject to any of a number of interpretations.

       In capital murder offenses committed during the course of robbery the legal . . .

sufficiency standard applies to both the charged and underlying offenses. See Matamoros v.

State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995); Brewer v. State, 126 S.W.3d 295, 297 (Tex.

App. - Beaumont 2004, pet. ref’d). To establish the murder portion of the charged offense, the

State must prove beyond a reasonable doubt that the defendant intentionally or knowingly caused

                                               -!27-
the death of an individual charged in the indictment. TEX. PENAL CODE §19.02(a); Rey v. State,

897 S.W.2d 333, 340 n.7 (Tex. Crim. App. 1995); Brewer, 126 S.W.3d at 297.

       To establish capital murder committed during the course of a robbery, the prosecution

must prove beyond a reasonable doubt, in addition to the alleged murder, that the defendant

possessed a specific intent to obtain or maintain control of the victim’s property either before or

during the commission of the offense. Maldonado v. State, 998 S.W.2d 239, 243 (Tex. Crim.

App. 1999). Proof of a completed theft is not required. Bustamante v. State, 106 S.W.3d 738,

740 (Tex. Crim. App. 2003); Maldonado, 998 S.W.2d at 243.

       Intent may be inferred from the acts, words, and conduct of the accused. See Guevara v.

State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); Patrick v. State, 906 S.W.2d 481, 487 (Tex.

Crime. App. 1995); Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982).              Mental

culpability is of such a nature that it generally must be inferred from the circumstances under

which the prohibited act occurred. See Dillion v. State, 574 S.W.2d 92, 94 (Tex. Crim. App.

1978); Skillern v. State, 890 S.W.2d 849, 880 (Tex. App. - Austin 1994, pet. ref’d). Thus, the

jury may infer the requisite intent to rob from the conduct of the accused. Conner v. State, 67

S.W.3d 192, 197 (Tex. Crim. App. 2001).

       The record is almost entirely devoid of any evidence, direct or circumstantial, of

Appellant’s intent to commit the underlying offense of robbery. Indeed, the only evidence may

be in the form of Mr. Robinson’s statement, admitted into evidence as a dying declaration, that

“old boy, old girl had set him up, he had been robbed.” (R.R. Vol. 4, pg. 65). Furthermore, even

though the State was not required to prove a completed theft, it presented no evidence apart from

the testimony of Alicia Green that a theft was even attempted.         Indeed, the only evidence




                                               -!28-
presented that related to the forty dollars that Mr. Robinson supposedly had was from the

testimony of Alicia Green.

       The State went to great lengths in its closing argument to stress that this whole matter

occurred over that same forty dollars:

       And you want to now how cold-blooded he is? Think about what Alicia told you
       when they were driving around in his car. She said, well, I mentioned to him
       about Troy, but he knows me; this plan isn’t going to work, he knows me. And
       what did this man say? I’ll just have to shoot him. It does not get any colder
       [than] that. He knew at that moment, I’m going to kill somebody tonight. He
       knew it. He didn’t bust in the back door without his weapon out. He busted in
       that door with his weapon pointed at Troy Robinson. That was the first thing he
       did. And when he pointed his gun at that man, Troy did everything he could to
       comply. He had him down on the floor, hands out. Where’s the money, where’s
       the money? Man, I’ve just got forty dollars.

       Ladies and gentlemen, the senseless nature of this crime is sickening. Forty
       dollars wasn’t enough for this man. He saw a big fancy house. He thought he
       lived there. Oh, there’s plenty of money here. Show me the money.

       There is not a scintilla of evidence in the record to support the State’s argument other

than the testimony of Alicia Green.

       Finally, the fact that Mr. Robinson apparently used the term “robbed” in response to

questioning from Officer McDuffie (R.R. Vol. 4 pg. 65) does not prove that he was robbed

beyond a reasonable doubt. Again, there was no evidence of a theft or an attempted theft besides

the testimony of Alicia Green. The police did not recover any stolen property, nor did they

discover any property missing from 1024 Brown Street.

       Because the State failed to meet its burden of proof on the underlying offense of robbery,

this Court should order that Appellant be acquitted of the offense of capital murder.




                                               -!29-
ISSUE NO. 3: The Trial Court erred when it denied Appellant his right to cross examine
Alicia Green regarding all aspects of her plea agreement with the State

       1.      Standard of Review

       The determination of admissibility of evidence is within the sound discretion of the trial

court, and will not be reversed on appeal unless a clear abuse of discretion is shown. Jackson v.

State, 575 S.W.2d 567, 570 (Tex. Crim. App. 1979); Werner v. State, 711 S.W.2d 639, 643 (Tex.

Crim. App. 1986; Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985), cert. denied,

107 S.Ct. 239 (1986). An appellate court should not find such an abuse of discretion if the trial

court’s ruling was within the “zone of reasonable disagreement.” Santellan v. State, 939 S.W.2d

155, 169 (Tex. Crim. App. 1997).

       2.      Argument and Analysis

              (a)    The trial court improperly denied Appellant’s right to fully expose the
bias and motive to testify favorably for the State of the key witness who made Appellant’s
conviction possible.

       The State elicited testimony from Alicia Green regarding her plea agreement that left a

false impression with the jury:

        Q.      Did you, upon having the support and advice of counsel, and I believe it
was Jason Horton, did you make the decision to change your plea from not guilty to
guilty to the charge of murder and serve a twenty year sentence in the state penitentiary?

       A.      Yes, sir.

       Q.      And was that decision made by you and your attorney prior to any
discussion with me or any member from the Bowie County District Attorney’s Office?

       A.      I’m sorry, what?

        Q.      Before — in other words, I want to make sure it’s understood that you
didn’t talk to me—.

               MR. SHUMAKER:         I’ll object to leading, Judge.


                                              -!30-
              MR. SHEPHERD:               I’ll rephrase it.

       Q.      (Mr. Shepherd) Did you tell me your story before or after you entered
your plea of guilty?

       A.     After I entered my plea of guilty.

       Q.     All right. I want to make sure the jury understands that you and I had no
conversation —

       A.     Right.

       Q.     — until you and your lawyer decided to change your plea. Is that correct?

       A.     Yes, sir, that’s correct.

        Q.    And at no point in time did I try to influence you prior to your agreement
that you made to change your plea?

       A.     No, sir.

      Q.      As it relates to the information that you gave after you entered your plea,
what was the only demand I made to you when we talked?

       A.     You told me to just tell the truth.

       Q.     And is that what you’re here to do today?

       A.     Yes, sir.

       Q.     And when we spoke after you entered your plea, was your attorney, Jason
Horton, present at that time?

       A.     Yes, sir.

       Q.      And in fact, we spoke I believe on several occasions that we made sure he
was present. Is that correct?

       A.     Right. Yes, sir.

       Q.     Your rights have been protected throughout this process. Is that correct?

       A.     Yes, sir. (R.R. Vol. 5 pgs. 95-97).



                                                    -!31-
       Upon cross-examination, defense counsel attempted to follow up on this line of

questioning:

       Q.       Okay. Mr. Shepherd just asked you did you ever talk to him before you

pled guilty and you said no.

       A.       Right

       Q.       Did you ever authorize your attorney to advise the DA —?

                MR. SHEPHERD: Your Honor, the State is going to object to any
conversation regarding — I believe we need to approach on this matter, Judge. I don’t
want to put this in front of the jury.

                THE COURT: All right.

                (Bench Conference:)

               MR. SHEPHERD: The State is objecting to Mr. Shumaker getting into
any negotiation as it relates to me, her lawyer, and herself. This Court has already ruled
that the final agreement, that matter is before this jury. Nothing in regard to any
conversations leading up to negotiations or anything else is proper before this jury, Judge.

               MR. SHUMAKER: I think, Judge, I’m entitled to — she stated that she
never talked to him about taking a deal before she testified. I’m entitled to ask her did
she ever authorize anybody to tell Mr. Shepherd she would testify in return for a twenty
year sentence. That is part of the plea bargain.

              THE COURT: That she’s got an agreement with him but you’re not
allowed to go into the process of it. Have you got any authority showing you can?
Because I’ve never seen any authority that says that.

                MR. SHUMAKER: Virts says I can get into plea negotiations.

                THE COURT: No, it doesn’t.

                MR. SHEPHERD: That’s the same argument they’ve already —.

                MR. SHUMAKER: Well, that’s what I think Virts says, Judge, but I may
be incorrect.




                                               -!32-
              THE COURT: I don’t think that’s what it says. It says you’re allowed to
go into the fact that there was an agreement reached and what the nature of that
agreement was.

               MR. SHUMAKER: But she’s — they’re giving the impression to this
jury, Judge, that this lady came and testified without anybody agreeing to a twenty year
sentence before she testified, and I’m entitled to ask her if anybody agreed to that prior to
her testimony. That could be giving the jury a false impression of her testimony.

               THE COURT: If you find some authority that allows you to do that, you
can provide it to me, but right now I’m not aware of any authority that allows you to do
that.

               MR. SHUMAKER: So is the Court going to prohibit me from questioning
her anything about that?

                THE COURT: Well, you can keep asking her other questions. You’ve got
two other lawyers sitting over there. If they can provide some authority on that, I’ll
certainly be glad to look at it.

                MR. SHUMAKER: I don’t think we can find any authority during the
middle of a trial, Judge.

                 THE COURT: Well, I mean, that’s what you’re left with. You’ve got two
people just sitting there. They can —.

               MR. SHUMAKER: Well, I mean, is the Court telling me — is the Court
sustaining the State’s objection that I can’t get into that?

               THE COURT: I’ll give you the opportunity to provide me some authority.
But if you can’t, them I’m sustaining the objection. You’ve got three iPads over there. It
certainly seems to me that they can start doing some research. If you don’t want to,
you’re choosing to waive the argument.

               MR. SHUMAKER: I’m not choosing to waive any argument, Judge.

               THE COURT: Well, then I suggest you get busy.

               MR. SHUMAKER: I assert that Virts is our authority and we’ll rely on
Virts.

               THE COURT: Okay. (R.R. Vol. 5 pgs. 139-142).




                                                -!33-
       Cross-examination of a witness in matters pertinent to [her] credibility ought to be given

the largest possible scope.    United States v. Mayer, 556 F.2d 245 (5th Cir. 1977).        This is

especially true where a prosecution witness has had prior dealings with the prosecutor or other

law enforcement officials, so that the possibility exists that [her] testimony was motivated by a

desire to please the prosecution in exchange for the prosecutor's actions in having some or all of

the charges against the witness dropped, securing immunity against prosecution, or attempting to

assure that the witness received lenient treatment in sentencing. Mayer, 556 F.2d at 248-49.

       The well-established rule is that “ . . . great latitude is allowed the accused in showing

any fact . . . which would tend to establish ill feeling, bias, motive, or animus on the part of any

witness testifying against him.” Simmons v. State, 548 S.W.2d 386 (Tex. Crim. App. 1977).

       Appellant should have been allowed to fully cross examine Ms. Green regarding all

aspects of her plea agreement, including negotiations, with the State in order to place her in her

proper perspective before the jury. Ms. Green’s testimony was material and relevant because

Ms. Green was an accomplice as a matter of law, and the State had little, if any, chance of

meeting its burden of proof without her testimony. It is well established that the Appellant was

entitled to know the terms of any agreement or “deal” with the prosecution.          However, the

inquiry should not stop there because it is the witness’ state of mind or possible expectations that

are the crucial issue, not the formal terms of the agreement or “deal”.

       In Parker v. State, 657 S.W.2d 137 (1983), a case that involved an alleged plea

agreement, Presiding Judge Onion noted that the failure of the trial court to allow cross

examination regarding the existence of a plea agreement and the circumstances leading up to it

amounted to reversible error. Indeed, he wrote that “[i]t has been held that the erroneous denial

of this right of confrontation is “constitutional error of the first magnitude and no amount of

                                               -!34-
showing of want of prejudice [will] cure it.” See also Davis v. Alaska, 415 U.S. 308, 318, 94

S.Ct. 1105, 1111, 39 L.Ed.2d 347, (1974); Spain v. State, 585 S.W.2d 705, 710 (Tex. Crim. App.

1979).

              (b)    This error was harmful beyond a reasonable doubt because, without
Alicia Green’s testimony, the State would not have been able to meet its burden of proof

         The Court of Criminal Appeals addressed improper denial of the right to cross

examination in Shelby v. State, 819 S.W.2d 544 (Tex. Crim. App. 1991). In Shelby, the Court

adopted the Sixth Amendment test to determine when the denial of cross examination requires

reversal. Citing Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Court first examined the

potential harm of limiting cross examination. Next, the Court reviewed the error, considering the

following factors:

         1.      The importance of the witness’ testimony in the prosecution’s case

         In the instant case, the importance of Alicia Green’s testimony simply cannot be

overstated.    Her testimony, along with her mother’s (Kennial Jacobs) testimony, resulted in

Appellant’s conviction. Without Alicia Green’s testimony, a conviction simply would not have

been possible.

         2.      Whether the testimony was cumulative

         The testimony was not cumulative of any other testimony in the case. Alicia Green is the

witness who allegedly gave the prosecution the “full” story as to the events that transpired on the

night of the offense. No other witness could duplicate her testimony.

       3.     The presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points




                                               -!35-
         With respect to material points, the only other witness who could corroborate, in part, the

testimony of Alicia Green was Kennial Jacobs. The other corroborating evidence is extremely

weak.

         4.      The extent of cross examination otherwise permitted

         Other than this issue, defense counsel was allowed to fully cross examine Alicia Green.

         5.      The overall strength of the prosecution’s case

         The prosecution’s case was extremely weak without the testimony of Alicia Green.

Again, her testimony was so important that a conviction could not have been had without it.

         The trial court’s error in limiting Appellant’s right to cross examine Alicia Green

regarding all aspects of her plea agreement with the State was harmful beyond a reasonable

doubt.

         This Honorable Court should reverse the Judgment of the trial court and order a new trial

for Appellant.

ISSUE NO. 4: The Trial Court erred when it denied Appellant his right to cross examine
Kennial Jacobs regarding her pending charge of Unauthorized Use of a Motor Vehicle

         1.      Standard of Review

         The determination of admissibility of evidence is within the sound discretion of the trial

court, and will not be reversed on appeal unless a clear abuse of discretion is shown. Jackson v.

State, 575 S.W.2d 567, 570 (Tex. Crim. App. 1979); Werner v. State, 711 S.W.2d 639, 643 (Tex.

Crim. App. 1986; Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985), cert. denied,

107 S.Ct. 239 (1986). An appellate court should not find such an abuse of discretion if the trial

court’s ruling was within the “zone of reasonable disagreement.” Santellan v. State, 939 S.W.2d

155, 169 (Tex. Crim. App. 1997).


                                                -!36-
       2.      Argument and Analysis

           (a)     The trial court improperly denied Appellant’s right to effectively cross
examine Kennial Jacobs to fully expose her bias and motive to testify favorably for the
State

       Kennial Jacobs was the second most important witness to testify in Appellant’s trial, and

she was the only other witness who could corroborate, in part, Alicia Green’s testimony.

       When cross examination of Kennial Jacobs commenced, the following exchange

occurred:

       MR. SHUMAKER: Can we approach, Judge?

       (Bench Conference:)

        MR. SHUMAKER: Judge, this witness [Kennial Jacobs] has an unauthorized use of a
motor vehicle charge pending against her in this Court that was referred to the grand jury in
August of 2014. Nothing has been done on that charge. It’s my position that I think I can ask
this witness about that because that could be bias to testify for the State. They’re holding a
charge over her that could put her in the penitentiary, and there’s been absolutely nothing done
on that charge for about a year.

       THE COURT: Response?

       MS. SUTTON: Your Honor, obviously, this is not a conviction to be used for
impeachment. Our position is that her testimony today is consistent with what it was previously.
This incident he’s talking about has happened in the interim, and any prejudicial effect outweighs
any probative value.

       THE COURT: All right. The Court is going to overrule the Defendant’s objections on
the basis of, one, the Court followed her testimony and it’s the exact testimony she gave when
she previously testified. Before this trial, she testified consistently with it. She testified
voluntarily at that trial. Her position has not changed any since the first trial, so any probative
value would be outweighed by the prejudicial effect.

       MR. SHUMAKER: So you’re saying I cannot get into it? Is that correct?

       THE COURT: Well, because it’s not a final conviction under 609. (R.R. Vol. 5 pgs.
171-72).




                                               -!37-
        Cross-examination of a witness in matters pertinent to [her] credibility ought to be given

the largest possible scope.    United States v. Mayer, 556 F.2d 245 (5th Cir. 1977).        This is

especially true where a prosecution witness has had prior dealings with the prosecutor or other

law enforcement officials, so that the possibility exists that [her] testimony was motivated by a

desire to please the prosecution in exchange for the prosecutor's actions in having some or all of

the changes against the witness dropped, securing immunity against prosecution, or attempting to

assure that the witness received lenient treatment in sentencing. Mayer, 556 F.2d at 248-49.

        The well-established rule is that “ . . . great latitude is allowed the accused in showing

any fact . . . which would tend to establish ill feeling, bias, motive, or animus on the part of any

witness testifying against him.” Simmons v. State, 548 S.W.2d 386 (Tex. Crim. App. 1977).

        In Simmons, supra, the trial court refused to allow defense counsel to cross examine a

witness about his prior arrests for the purpose of showing bias towards the prosecutor’s office on

the part of the witness. The court in Simmons noted that murder convictions were overturned in

Meyer v. State, 519 S.W.2d 868 (Tex. Crim. App. 1975) and Burkhalter v. State, 493 S.W.2d 214

(Tex. Crim. App. 1973) because the defendants in those cases were prevented from showing the

potential bias of the State’s main witnesses in terms of pending indictments and/or promises of

leniency.

        The Simmons court agreed with the Davis court when it found that “[t]he 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 of prejudice would cure it.” Davis, 415 U.S. at 318, 94 S.Ct. at

1111.

        The prosecution in the instant case argued, and the trial court found, that Ms. Jacobs’

testimony was consistent with her testimony in the first trial.       However, this reasoning is

                                               -!38-
unpersuasive and illogical because the jury certainly was not allowed to know that fact and, of

course, could not have had the benefit of the first trial transcript. It is the jury’s duty to judge

witness demeanor and credibility based upon what is presented inside the courtroom. Preventing

the jury from hearing otherwise admissible testimony simply because the trial court had the

benefit of a transcript from a previous proceeding improperly intruded upon the province of the

jury in assessing Kennial Jacobs’ credibility, bias, and motive to testify for the State.

               (b)    The error was harmful beyond a reasonable doubt because Kennial
Jacobs testified she picked up Appellant and Alicia Green in another part of Wake Village
and returned them to Appellant’s vehicle where it was parked just down the street from the
scene of the offense

       The Court of Criminal Appeals addressed improper denial of the right to cross

examination in Shelby v. State, 819 S.W.2d 544 (Tex. Crim. App. 1991). In Shelby, the Court

adopted the Sixth Amendment test to determine when the denial of cross examination requires

reversal. Citing Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Court first examined the

potential harm of limiting cross examination. Next, the Court reviewed the error, considering the

following factors:

       1.      The importance of the witness’ testimony in the prosecution’s case

       In the instant case, it could be argued that Kennial Jacobs was the second most important

witness the State presented because her testimony corroborated Alicia Green’s testimony (in part)

by allegedly placing Appellant in the Wake Village area near the time of the offense.

Furthermore, she testified that she picked up Appellant and Alicia Green and returned Appellant

to his vehicle just a couple of blocks down Brown Street from the scene of the offense. Her

testimony, along with her Alicia Green’s testimony, resulted in Appellant’s conviction.




                                                 -!39-
        2.     Whether the testimony was cumulative

        The testimony was partly cumulative of Alicia Green’s testimony, but it was still highly

significant to the State because it purported to corroborate parts of Alicia Green’s testimony

placing Appellant in the area of the offense near the time that the offense was committed.

       3.     The presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points

        With respect to material points, the only other witness who could corroborate, in part, the

testimony of Kennial Jacobs was Alicia Green. The other corroborating evidence is extremely

weak.

        4.     The extent of cross examination otherwise permitted

        Other than this issue, defense counsel was allowed to fully cross examine Kennial Jacobs.

        5.     The overall strength of the prosecution’s case

        The prosecution’s case was extremely weak without the testimony of both Kennial Jacobs

and Alicia Green. Again, their combined testimony was so important that a conviction could not

have been had without it.

        The trial court’s error in limiting Appellant’s right to cross examine Kennial Jacobs with

respect to pending felony criminal charges was harmful beyond a reasonable doubt.             This

Honorable Court should reverse the Judgment of the trial court and order a new trial for

Appellant.

ISSUE NO. 5:      The trial court erred when it admitted an audiotape tape allegedly
containing a telephone conversation between Alicia Green and Appellant because a proper
foundation for its admissibility was not established




                                               -!40-
       1.     Standard of Review

       The determination of admissibility of evidence is within the sound discretion of the trial

court, and will not be reversed on appeal unless a clear abuse of discretion is shown. Jackson v.

State, 575 S.W.2d 567, 570 (Tex. Crim. App. 1979); Werner v. State, 711 S.W.2d 639, 643 (Tex.

Crim. App. 1986; Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985), cert. denied,

107 S.Ct. 239 (1986). An appellate court should not find such an abuse of discretion if the trial

court’s ruling was within the “zone of reasonable disagreement.” Santellan v. State, 939 S.W.2d

155, 169 (Tex. Crim. App. 1997).

       2.     Argument and Analysis

       The State did not establish a complete foundation for the admission of the recorded

telephone conversation between Appellant and Alicia Green that was admitted into evidence as

State’s Exhibit 54. (R.R. Vol. 5 pgs. 133-34). Accordingly, the trial court should not have

admitted the recording.

       Texas Rule of Evidence 901 provides, in relevant part:

       Authenticating or Identifying Evidence

       (a)    In General. To satisfy the requirement of authenticating or identifying an item of
              evidence, the proponent must produce evidence sufficient to support a finding that
              the item is what the proponent claims it is.

       (b)    Examples. The following are examples only - not a complete list - of evidence
              that satisfies the requirement:

              (1)     Testimony of a Witness with Knowledge. Testimony that an item is what
                      it is claimed to be.

              ...

              (5)     Opinion About a Voice. An opinion identifying a person’s voice - whether
                      heard firsthand or through mechanical or electronic transmission or


                                              -!41-
                      recording - based on hearing the voice at any time under circumstances
                      that connect it with the alleged speaker.

               (6)    Evidence About a Telephone Conversation.                For a telephone
conversation, evidence that a call was made to the number assigned at the time to:

                      (A)     a particular person, if circumstances, including self-identification,
                              show that the person answering was the one called; or

                      (B)     a particular business, if the call was made to a business and the call
                              related to business reasonably transacted over the telephone.

       To authenticate the recorded telephone conversation, the State offered the testimony of

Chief Ronny Sharp of the Wake Village Police Department. (R.R. Vol. pgs. 64-65). Chief Sharp

testified on direct that he was aware of the recording (R.R. Vol. 5 pg. 64); he had listened to the

recording (R.R. Vol. 5 pg. 64); that the recording was prepared on a device capable of making an

accurate recording (R.R. Vol. 5 pg. 65); the recording was an accurate copy of the conversation

that took place between Alicia Green and Appellant (R.R. Vol. 5 pg. 65); and that it was his

opinion that the voices were those of Alicia Green and Appellant. (R.R. Vol. 5 pg. 65).

       Defense counsel took Chief Sharp on voir dire concerning the telephone recording, and

Chief Sharp completely contradicted his own testimony given moments before by testifying that

he had no idea whether the machine had made an accurate recording of the telephone

conversation (R.R. Vol. 5 pg. 66); that he did not know if it was a complete copy of the telephone

recording (R.R. Vol. 5 pg. 67); and that he did not know whether the telephone recording had

been tampered with (R.R. Vol. 5 pg. 67).

       The State failed to authenticate the recording through Chief Sharp under Texas Rule of

Evidence 901. Chief Sharp was not a witness with personal knowledge, and he testified that he




                                               -!42-
did not know if the device recording the telephone call made an accurate recording, nor did he

know if the the recording was complete or had been tampered with.

       Furthermore, the State failed to show through either Chief Sharp or Alicia Green, as

required by Texas Rule of Evidence 901(b)(6), that the phone number called was assigned to

Appellant.

       Although Alicia Green testified that she called Appellant, that the telephone recording

had not been tampered with, and the voices on the telephone recording were those of herself and

Appellant (R.R. Vol. 5 pgs. 132-33), her testimony must be viewed with suspicion because she

was an accomplice as a matter of law and, therefore, inherently untrustworthy. Appellant asserts

that, as discussed supra, there should have been sufficient corroborating evidence to link

Appellant to the recorded telephone conversation other than Alicia Green’s testimony. There is

simply no reliable corroborating evidence that gives adequate assurance that the telephone

recording was accurate, unedited, and complete.

       For these reasons, the State did not establish the proper foundation for admission of the

telephone recording.

       An error must affect the substantial rights of the accused to be harmful. See TEX. R. APP.

P. 44.2(b). A “substantial right” is affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App.

1997)(citing TEX. R. APP. P. 44.2(b)).     Alternatively, error is harmless if the error “did not

influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998). The Appellant does not bear the burden to establish such harmful error. Schutz v.

State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim.




                                               -!43-
App. 2001). Rather, it is the responsibility of the appellate court to assess harm after reviewing

the record. Schutz, 63 S.W.3d at 444; Johnson, 43 S.W.3d at 4.

       The telephone conversation was harmful beyond a reasonable doubt to Appellant. The

implication was that Appellant clearly participated in the offense, otherwise Alicia Green would

not have been calling him and telling him to “get ghost”. The telephone conversation obviously

played a large part in the jury’s deliberations because they were brought back into the courtroom

during deliberations where the telephone recording was played for them yet again (R.R. Vol. 6

pgs. 43-44). For these reasons, admission of the telephone recording into evidence was harmful

to Appellant’s substantial rights and contributed to his conviction.

       This Honorable Court should reverse the trial court’s judgment and order a new trial for

Appellant.

ISSUE NO. 6. Appellant suffered egregious harm because the jury charge failed to
properly apply the accomplice witness instruction in the abstract portion of the charge to
the facts of the case in the application portion of the charge

       1.      Standard of Review

       The purpose of the trial judge’s jury charge is to instruct the jurors on all of the law

applicable to the case. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Because

the charge is the instrument by which the jury convicts, [it] must contain an accurate statement of

the law and must set out all the essential elements of the offense.” Dinkins v. State, 894 S.W.2d

330, 339 (Tex. Crim. App. 1995). In examining the charge for possible error, reviewing courts

“must examine the charge as a whole instead of a series of isolated and unrelated statements.”

Id.

       The application paragraph is that portion of the jury charge that applies the pertinent

penal law, abstract definitions, and general legal principles to the particular facts and the

                                                -!44-
indictment allegations. See Gray v. State, 152 S.W.3d 125, 127-28 (Tex. Crim. App. 2004)(“It is

not enough for the charge to merely incorporate the allegation in the charging instrument.

Instead, it must also apply the law to the facts adduced at trial. This is because ‘[t]he jury must

be instructed under what circumstances they should convict, or under what circumstances they

should acquit.’    Jury charges which fail to apply the law to the facts adduced at trial are

erroneous.”). Because that paragraph specifies the factual circumstances under which the jury

should convict or acquit, it is the “heart and soul” of the jury charge. Id. at 128.

       When a definition or instruction on a theory of law . . . is given in the abstract portion of

the charge, the application paragraph must 1) specify “all of the conditions to be met before a

conviction under such theory is authorized (Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App.

1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997); 2)

authorize “a conviction under conditions specified by other paragraphs of the jury charge to

which the application paragraph necessarily and unambiguously refers” (Id.); or 3) “contain

some logically consistent combination of such paragraphs.” Id.

       Appellate review of jury charge error is a two-step process. Abdnor, 871 S.W.2d at 731.

First, the Court decides whether error occurred. Id. Next, the Court evaluates whether sufficient

actual harm resulted from the error to require reversal. Id. at 731-32; Arline v. State, 721 S.W.2d

348, 351 (Tex. Crim. App. 1986). If error exists and a timely objection was made at trial, the

Court must determine whether the charge error resulted in “some harm” to Appellant. Abdnor,

871 S.W.2d at 732; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If

the error is instead urged for the first time on appeal, the Court must determine whether the

charge error resulted in “egregious harm” to Appellant. Abdnor, 871 S.W.2d at 732; Almanza,

686 S.W.2d at 171.

                                                 -!45-
          2.     Argument and Analysis

       (a)    The jury charge was erroneous because it failed to specifically instruct the
jury regarding how it was to apply the accomplice witness instructions to the facts of the
case, and the application paragraph’s reference to “bearing in mind the foregoing
instructions” was insufficient to meet that burden

          The jury charge, in its abstract portion, defined “accomplice” and also instructed the jury

that Alicia Green was an “accomplice as a matter of law.” (R.R. Vol. 6 pg. 13).

          However, the jury charge was erroneous because the application portion of the jury

charge failed to specifically instruct the jury how it was to consider and apply the accomplice

testimony and any corroborative evidence to Appellant’s alleged actions.           (R.R. Vol. 6 pgs.

14-15).

          The jury charge, as a part of the application paragraph, should have incorporated into the

instructions that the jury must acquit Appellant if it: 1) believed Alicia Green’s testimony, and

that her testimony established Appellant’s guilt as charged in the indictment, but it did not

believe her testimony was sufficiently corroborated; or 2) if it did not believe Alicia Green’s

testimony, and her testimony did not show Appellant’s guilt as charged in the indictment, and her

testimony was corroborated and tended to connect Appellant with the offense charged.

          The simple instruction that, in assessing and applying the law to the facts of the case, the

jury should “bear in mind the foregoing instructions” is insufficient to adequately instruct it in

this complex accomplice witness case.

       (b)    Appellant suffered egregious harm because Alicia Green was the State’s star
witness, and a conviction absent her testimony would not have been possible

          Appellant did not object to the complained of error in Issue No. 6.




                                                  -!46-
         In determining whether there has been egregious harm, the reviewing court should

consider (a) the jury charge as a whole; (b) the state of the evidence, including contested issues

and the weight of the probative evidence; (c) arguments of counsel, and (d) any other relevant

information in the record. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006); Taylor

v. State, 146 S.W.3d 801, 310 (Tex. App. - Texarkana 2004, pet. ref’d). Direct evidence of harm

is not required to establish egregious harm. Castillo-Fuentes v. State, 707 S.W.2d 559, 563 n.2

(Tex. Crim. App. 1986); Hill v. State, 30 S.W.3d 505, 507-08 (Tex. App. - Texarkana 2000, no

pet.).

         Setting aside the testimony of Alicia Green, the alleged corroborating evidence in this

case (all of which was contested) is weak and does not sufficiently connect Appellant to the

alleged offense nor to the underlying offense of robbery. Mr. Robinson was unable to identify

Appellant as his attacker, and his statements to Mr. Frost, the police officers, and Mr. Guyton did

not provide sufficient information to establish any possible underlying motive because they were

vague and subject to any of a number of interpretations. Mr. Robinson’s statements did not shed

any light on exactly what transpired inside 1024 Brown Street, nor did they enlighten the jury

about the specific intent of the actor or actors who shot him and when that intent was formed.

         The other witnesses were, likewise, unable to identify Appellant as having been involved

in the crime. Only Kennial Jacobs testified that she picked up Alicia Green and Appellant in

another part of Wake Village on the same night as the offense.

         Indeed, Alicia Green is the only person who made Appellant’s conviction possible, and

Appellant’s trial counsel argued the insufficiency of the evidence.

         The jury charge is a confusing morass of definitions and instructions along with various

and changing mens rea’s depending on which part of the jury charge one is reading.               The

                                               -!47-
application paragraph makes no specific reference to the “accomplice” portion of the jury charge

and it does not instruct the jury on how to apply the “accomplice” instructions to the facts of the

case.

        Appellant was egregiously harmed by the omission in the application paragraph of any

specific instructions regarding how to apply the “accomplice” instructions to the facts of the case

and what the jury must find or not find to either convict or acquit Appellant in terms of the

“accomplice” instruction.

        This Honorable Court should reverse the judgment of the trial court and remand the case

for a new trial.

                                             PRAYER

        WHERFORE, premises considered, Kennedy Dewayne Riley respectfully requests that

his conviction be reversed and judgment rendered in his favor, that the conviction be reversed

and a new trial granted, or for such other and further relief to which he may be entitled.

                                                        Respectfully submitted,

                                                        /s/ Clint E. Allen
                                                        Attorney at Law
                                                        Texas Bar No. 24012206
                                                        207 East Hiram Street
                                                        Atlanta, Texas 75551
                                                        Tel. 903-799-7779
                                                        Fax 903-799-7771
                                                        clint@clintallenlaw.com

                                                        Attorney for Appellant




                                                -!48-
                                CERTIFICATE OF SERVICE

       This is to certify that on November 16, 2015, a true and correct copy of the above and
foregoing Brief of Appellant has been forwarded via U.S. mail to the following:

       Ms. Lauren Sutton
       Assistant Criminal District Attorney
       601 Main Street
       Texarkana, Texas 75501

       Kennedy Riley, #1885338
       Mark W. Stiles Unit
       3060 FM 3514
       Beaumont, Texas 77705

                                                      /s/ Clint E. Allen




                             CERTIFICATE OF COMPLIANCE

        Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned counsel certifies that
this Brief contains 13,364 words (less than 15,000) based upon the word count function of the
word processing software used to prepare the Brief.


                                                      /s/ Clint E. Allen




                                              -!49-
