                                                                   ACCEPTED
                                                               01-15-00302-CR
                                                    FIRST COURT OF APPEALS
                                                            HOUSTON, TEXAS
                                                          11/6/2015 9:54:06 PM
                                                         CHRISTOPHER PRINE
                                                                        CLERK




    No. 01-15-00302-CR                        FILED IN
                                       1st COURT OF APPEALS
                                           HOUSTON, TEXAS
                In the                 11/6/2015 9:54:06 PM
         Court of Appeals              CHRISTOPHER A. PRINE
                                               Clerk
               For the
       First District of Texas
             At Houston
    ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
         Cause No. 74447
In the 412th Judicial District Court
    Of Brazoria County, Texas
    ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

  JASON BURROWS
      Appellant
         V.
THE STATE OF TEXAS
      Appellee
   ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

APPELLANT’S BRIEF
   ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

                   SCOT R. COURTNEY
                   TBC No. 00790515
                   P.O. Box 787
                   San Marcos, Texas 78667-0787
                   Tel.:     512-392-9292
                   Fax No.: 512-532-6766
                   EM: sanmarcoslaw@gmail.com
                   Counsel for Appellant

ORAL ARGUMENT REQUESTED
             IDENTIFICATION OF ALL PARTIES

APPELLANT:                      JASON BURROWS
                                2902 Kensington Park
                                Pearland, Texas 77584

TRIAL PROSECUTOR:               CHASE CLAYTON-LEAD
                                TBC No. 24072040
                                AARON PERRY
                                TBC No. 24068270
                                Assistant District Attorney
                                111 E. Locust St., Suite 408A
                                Angleton, Texas 77515
                                Tel.:      979-864-1230

DEFENSE COUNSEL AT TRIAL:       GREG CAGLE-LEAD
                                TBC No. 00790414
                                1602B State St.
                                Houston, Texas 77007
                                Tel.:     800-848-2088

                                SCOT COURTNEY
                                TBC No. 00790515
                                P.O. Box 787
                                San Marcos, Texas 78667-0787
                                Tel.:     512-392-9292
                                Fax No.: 512-532-6766
                                E: sanmarcoslaw@gmail.com

PRESIDING JUDGE AT TRIAL:       HON. W. EDWIN DENMAN

APPELLANT’S COUNSEL:            SCOT COURTNEY
                                TBC No. 00790515
                                P.O. Box 787
                                San Marcos, Texas 78667-0787
                                Tel.:     512-392-9292
                                Fax No.: 512-532-6766
                                EM:sanmarcoslaw@gmail.com




SC                          i
                                    TABLE OF CONTENTS

IDENTIFICATION OF PARTIES ........................................................ i

TABLE OF CONTENTS ..................................................................... ii

INDEX OF AUTHORITIES ............................................................... iii

STATEMENT OF JURISDICTION .................................................... v

ISSUES PRESENTED ........................................................................ vi

STATEMENT OF FACTS ................................................................. vii

SUMMARY OF THE ARGUMENT .................................................. ix

ARGUMENT AND AUTHORITY
    POINT OF ERROR NO. ONE................................................... 1
    POINT OF ERROR NO. TWO .................................................. 9

PRAYER ............................................................................................ 16

CERTIFICATE OF SERVICE ........................................................... 17

CERTIFICATE OF COMPLIANCE ................................................. 17




SC                                                    ii
                              INDEX OF AUTHORITIES
CASE                                                                              PAGE
Abdnor v. State, 871 S.W.2d 726 (Tex.Crim.App.1994) ..................... 7
Almaguer v. State, 2014 WL 5088386 (Tex. App. Oct. 9, 2014) . 12, 15
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) ................... 7
Arthur v. State, 11 S.W.3d 386 (Tex. App. 2000) .............................. 10
Brooks v. State, 132 S.W.3d 702 (Tex.App.-Dallas 2004, pet. ref'd). 14
Burch v. State, 401 S.W.3d 634 (Tex.Crim.App. 2013)..................... 11
Crawford v. Washington, 541 U.S. 36, (2004) ............. 9, 11, 12, 13, 16
Carriere v. State, 84 S.W.3d 753
(Tex.App.-Houston [1st Dist.] 2002) ................................................ 4,5
Davis v. State, 968 S.W.2d 368 (Tex.Crim.App. 1998) ..................... 10
De La Paz v. State, 273 S.W.3d 671 (Tex.Crim.App.2008) .............. 12
Davis v. Washington, 547 U.S. 813 (2006) .................................. 10, 12
Fields v. State, 1 S.W.3d 687 (Tex.Crim.App.1999) ................... 10, 11
Fluellen v. State, 104 S.W.3d 152
(Tex.App.-Texarkana 2003, no pet.) .................................................... 5
Geesa, 820 S.W.2d 154 (Tex.Crim.App. 1991) ............................... 2, 3
Gutierrez v. State, 150 S.W.3d 827
(Tex.App.-Houston [14th Dist.] 2004, no pet.) ................................. 14
Hanks v. State, 104 S.W.3d 695
(Tex.App.-El Paso 2003, pet. granted) ................................................. 5
Hereford v. State, 444 S.W.3d 346 (Tex. App. 2014) ........................ 12
Langham v. State, 305 S.W.3d 568 (Tex.Crim.App.2010) .......... 13, 16
Lee v. State, 143 S.W.3d 565 (Tex.App.-Dallas 2004, pet. ref'd) ...... 14
Marquez v. State, 725 S.W.2d 217 (Tex.Crim.App.1987) .................. 2
Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010)...................... 4
McGinty v. State, 723 S.W.2d 719 (Tex.Crim.App.1986) ................... 2
Minor v. State, 91 S.W.3d 824
(Tex.App.-Fort Worth 2002, pet. ref'd) ................................................ 5
Mitchell v. State, 931 S.W.2d 950 (Tex.Crim.App. 1996) ................. 11
Molina v. State, 450 S.W.3d 540 (Tex. App. 2014) ........................... 11
O'Canas v. State, 140 S.W.3d 695 (Tex. App.-Dallas 2003) .............. 5
Ochoa v. State, 119 S.W.3d 825
(Tex.App.-San Antonio 2003, no pet.) ................................................. 5
Paez v. State, 995 S.W.2d 163
(Tex.App.—San Antonio 1999, pet. ref'd) ........................................... 9
Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App.2000) .......... 2, 3, 4, 5
Phillips v. State, 72 S.W.3d 719
(Tex.App.-Waco 2002, no pet.) ............................................................ 5

SC                                              iii
Reyes v. State, 938 S.W.2d 718 (Tex.Crim.App.1996) ................... 2, 3
Rodriguez v. State, 96 S.W.3d 398 (Tex. App.-Austin 2002) ...... 2, 5, 6
Saunders v. State, 817 S.W.2d 688 (Tex.Crim.App.1991) .................. 7
Scott v. State, 165 S.W.3d 27 (Tex.App.-Austin 2005, pet. stricken) 14
Torres v. State, 116 S.W.3d 208 (Tex.App.-El Paso 2003, no pet.)..... 5
Tyler v. State, 167 S.W.3d 550
(Tex. App.-Houston [14th Dist.] 2005) .............................................. 14
United States v. Langer, 962 F.2d 592 (7th Cir.1992) ......................... 6
United States v. Saget, 377 F.3d 223, 228 (2nd Cir.2004) ................. 14
Vosberg v. State, 80 S.W.3d 320
(Tex.App.-Fort Worth 2002, pet. ref'd) ................................................ 5
Walker v. State, 180 S.W.3d 829
(Tex. App.-Houston [14th Dist.] 2005) .............................................. 15
Wall v. State, 184 S.W.3d 730 (Tex.Crim.App.2006) ........................ 12
Whitson v. State, 495 S.W.2d 944, 946 (Tex.Crim.App.1973) ............ 6
Wiggins v. State, 152 S.W.3d 656
(Tex.App.-Texarkana 2004, pet. ref'd) .............................................. 14

STATUTES, CODES & RULES                                                                       PAGE
Tex.Code Crim. Proc. 37.07 §3(a) ..................................................... 10
T.R.A.P. 9.4(i)(2) ............................................................................... 17
T.R.A.P. 44.2 ...................................................................................... 15
T.R.A.P. 44.2(a) ................................................................................. 17
Tex.R. Evid. 801(d) ............................................................................ 12
U.S. Const. Amend. VI....................................................................... 11




SC                                                    iv
TO THE HONORABLE COURT OF APPEALS:


                   STATEMENT OF JURISDICTION

      Appellant was charged by indictment alleging the Class A

Misdemeanor of Official Oppression, alleged to have occurred on June 10,

2012 in Brazoria County, Texas. After a trial on the merits, a jury returned a

verdict of guilty on the charge of Official Oppression. The Court sentenced

Appellant to three hundred sixty-five days (365) in the Brazoria County Jail

and a Two Thousand Dollar ($2,000.00) fine on March 27, 2015.

Appellant’s request for bond pending appeal was granted and Appellant

released upon satisfaction of said bond. Timely Notice of Appeal was filed

and this matter properly transferred to this Court for appellate review.




SC                                     v
                   ISSUES PRESENTED

              POINT OF ERROR NO. ONE
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY “IT      IS
NOT REQUIRED THAT THE PROSECUTION PROVE GUILT BEYOND ALL
POSSIBLE DOUBT.”

              POINT OF ERROR NO. TWO
THE TRIAL COURT ERRED IN ALLOWING AND CONSIDERING
EVIDENCE OF EXTRANEOUS CONDUCT BASED ON HEARSAY
AND IN VIOLATION OF DEFENDANT’S DUE PROCESS RIGHTS
AS RECOGNIZED UNDER CRAWFORD.




SC                          vi
                        STATEMENT OF FACTS

      On June 10, 2012, Mariana Martinez alleged that at approximately

4:30a.m., while traveling to her workplace located at 1608 Hwy. 6, Alvin,

Texas, a marked patrol unit was behind her as she traveled down CR 99.

Sometime after she swerved in the roadway to avoid a dog, the marked

patrol unit activated the patrol/emergency equipment.       In response, she

pulled over and a white male officer approached her, requested identification

and advised her of the reason for the stop (i.e. swerving). Ms. Martinez

advised she did not have a driver’s license and was asked to step out of the

car. After a brief interview, the Officer advised Ms. Martinez to get back in

her car and rive to the Spin-In Market, located at 2246 CR 99, in Alvin,

Texas, approximately 1½ miles from the initial stop location.

      Ms. Martinez testified that she parked at the end of the building and

the patrol unit parked directly behind her. The Officer approached the car

and then told her to get out of the car; she complied and walked to back of

her car. She testified that the Officer asked her questions. The Officer told

her to turn around and began a search of her from the waist up and then told

her to turn around and to told her to go to the back of the store where it was

dark. She complied. At that point, the Officer ordered her to lift her shirt;




SC                                    vii
she complied. Ms. Martinez testified that at that point, the Officer fondled

her breasts. The Officer then stopped and allowed her to leave.

      Ms. Martinez reported this incident on June 11, 2012 and on June 29,

2012 she identified Defendant from a photo line-up (See State’s Ex. No. 8

[RR Vol. 8]).

      Testimony revealed that no evidence of the stop was contained on the

patrol unit assigned to him on the above-referenced date. Furthermore, all

digital evidence, including the computer data logs from the patrol unit

assigned to the Defendant had been destroyed by the investigating officer(s).

No video evidence captured the events alleged. The computer hard-drive

containing the digital evidence relating to the in-car video system reflected

that there was no download of the evidence to the main system and was also

apparently destroyed by investigating agents. Both the vehicle assigned to

Defendant at the time of the allegation, as well as the in-car digital recording

system from the time of the allegation was disposed of by the Brazoria

County Sheriff and was never made available to the defense for inspection

and/or examination.

      During the Punishment phase, testimony was heard (over objection)

that Appellant had been identified via photo spread, during the investigation

of an unrelated allegation. This testimony was from an investigating officer



SC                                    viii
and no other witness was called to testify relating to this allegation. The

alleged complainant was not called to testify, however was subpoenaed by

the State, but failed to appear.



                    SUMMARY OF THE ARGUMENT

      A brief summary of the argument contained in Appellant’s Brief

includes: 1) Trial Court’s erred in allowing an instruction relating to the

definition of reasonable Doubt; and 2) Trial court erred in admitting and

considering evidence over objections based on Hearsay, Foundation and

Crawford.




SC                                  ix
                     ARGUMENT & AUTHORITY

                   POINT OF ERROR NO. ONE
      THE TRIAL COURT ERRED IN INSTRUCTING THE
      JURY “IT IS NOT REQUIRED THAT THE PROSECUTION PROVE
      GUILT BEYOND ALL POSSIBLE DOUBT.”



      Upon review of the proposed Jury Instructions, Defense Objected to

the inclusion of a definition of “reasonable doubt” that was included, at the

behest and request of the State in those instructions. The following is an

excerpt of that portion of the hearing/charge conference:

        We have one objection. That objection is to the language
        included on page 3, second full paragraph, second sentence.
        That reads, “It is not required that the prosecution prove
        guilt beyond all possible doubt.” We'd ask that that be
        stricken. It's our position that the caselaw out of the 3rd
        District as well as the 14th and cited cases -- I believe it's
        Rodriguez. I can't recall the cite, the cite that we gave the
        Court yesterday we discussed. And Progeny is error. It's our
        position that the caselaw suggests that it is prudent -- well,
        absent an agreement by the parties that it is an error and
        prudent practice not to be included over objection.
        THE COURT: I'll overrule that objection.

      (See RR VI, pg. 4-5)

      It should be noted that the Pattern Jury Charges promulgated by the

State Bar of Texas do not contain, nor advocate for the inclusion of such a

definition.




SC                                    1
      Secondly, it is most significant that the Second Jury note sent out

during deliberations read “We want a definition of reasonable doubt that is

not influenced by the State or defense.” (See CR Vol. I, pg. 175)

      Prior to the 1991 decision in Geesa and for well over a century, Texas

trial courts normally did not define “reasonable doubt” in jury charges. See

Rodriguez, supra, citing, McGinty v. State, 723 S.W.2d 719, 721

(Tex.Crim.App.1986). Additionally, a trial court’s refusal to define such,

even when requested, was frequently held not to be error. See Rodriguez,

supra, citing, Marquez v. State, 725 S.W.2d 217, 241 (Tex.Crim.App.1987).

As the Court is also aware, On November 6, 1991, the Court of Criminal

Appeals in Geesa adopted a definition of proof beyond a reasonable doubt

and required that it be given “in all criminal cases, even in the absence of an

objection or request by the State or the defendant, whether the evidence be

circumstantial or direct.” Geesa, 820 S.W.2d at 162. In Reyes v. State, 938

S.W.2d 718, 720–21 (Tex.Crim.App.1996), the Court held that the above

described holding in Geesa created an “absolute systemic requirement” that

cannot be waived or forfeited or be subject to a harm analysis in a case

where the Geesa definition was totally omitted.

      Then came Paulson. In reviewing the trial court’s complete omission

of the Geesa definition, the Fourteenth Court of Appeals, on the basis of



SC                                     2
Geesa and Reyes dutifully, but reluctantly found “automatic reversible

error.” Paulson v. State, 991 S.W.2d 907, 917 (Tex.App.-Houston [14th

Dist.] 1999), rev'd, 28 S.W.3d 570 (Tex.Crim.App.2000). PDR was granted

in Paulson and the Court of Criminal Appeals overruled Reyes in its entirety

and overruled Geesa, insofar as that decision required trial courts to instruct

juries on the mandated definition of “reasonable doubt.” Paulson, 28 S.W.3d

at 573.

      “It is ill-advised for us to require trial courts to provide the jury with a

redundant, confusing, and logically-flawed definition when the Constitution

does not require it, no Texas statute mandates it, and over a hundred years of

pre-Geesa precedent discourages it.” Id. at 572–73. The Paulson opinion

further added: “We find that the better practice is to give no definition of

reasonable doubt at all to the jury. On the other hand, if both the State and

the defense were to agree to give the Geesa instruction to the jury, it would

not constitute reversible error for the trial court to acquiesce to their

agreement. Id. at 573.

      Paulson returned Texas law to its pre-Geesa condition - “it is not error

to refuse to define reasonable doubt.” 43 George E. Dix & Robert O.

Dawson, Texas Practice: Criminal Practice and Procedure § 36.34 (2d ed.

Supp.2002).



SC                                      3
         In the fallout from Paulson, came a series of decisions that currently

leaves     this   particular   state   of       affairs   unsettled   and    unsettling.

Notwithstanding the following review of the various Courts and their

respective views, all Court’s, based upon the dictate of the Texas Court of

Criminal Appeals must agree that “the better practice is to give no definition

of reasonable doubt at all to the jury”. See, Mays v. State, 318 S.W.3d 368,

389 (Tex. Crim. App. 2010) & Paulson v. State, 28 S.W.3d 570, 573

(Tex.Crim.App.2000).

         Granted, early on this Court weighed-in with it’s decision in Carriere

v. State, 84 S.W.3d 753, 759 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd),

which held that the language at issue did not constitute a definition of

reasonable doubt and therefore did not violate Paulson.                     This Court

however, tempered such with the following, “[t]he Paulson court held the

“better practice” was to avoid defining reasonable doubt for the jury. Id.

“Better practice” does not preclude a court from submitting a proper charge

in a different fashion. If including any instruction or definition regarding

reasonable doubt would constitute error, the Paulson court was in a position

to say so and, instead, it remained silent to that effect. We must review each

charge, and each objection therein, on a case-by-case basis, to determine if

error exists. Id. at 760.



SC                                          4
         Since that time, other courts of appeals (Fort Worth, San Antonio,

Texarkana, El Paso and Dallas), have agreed with Carriere ' s determination

that language similar to the language at issue presently, does not define

reasonable doubt.1

         The Waco Court was also early to review such language in Phillips v.

State, 72 S.W.3d 719 (Tex.App.-Waco 2002, no pet.) and found that

“[b]ecause the Court of Criminal Appeals was clear on the point—give it all

if the parties agree or give none of it—we hold that it was error to give part

of the Geesa instruction in the absence of an agreement.” The Phillips court

determined, as did the Austin Court in Rodriguez, supra, that the error was

harmless, however the Austin Court did not fully agree with the Waco Court

of Appeals’ strict Paulson construction in Phillips. The Austin Court’s

rational was that: “attempts to define reasonable doubt do not usually make

it clearer in the minds of the jurors, often they tend to impermissively

increase or lessen the burden of proof or utilize additional terms which

themselves require definition.” See Rodriguez, supra, citing, Paulson, at

912.      The Austin Court went on to opine that “[i]t has been said that ‘any

use of an instruction defining reasonable doubt presents a situation



1
    See Ochoa v. State, 119 S.W.3d 825, 829 (Tex.App.-San Antonio 2003, no pet.); Torres



SC                                          5
equivalent to playing with fire.’” Id. (quoting United States v. Langer, 962

F.2d 592, 600 (7th Cir.1992)).

      The Austin Court’s Rodriguez decision clearly recognizes that the

criminal defendant in Texas is entitled to a jury charge on proof of guilt

beyond a reasonable doubt, however keenly observed that “[t]he charge on

reasonable doubt should be given in the language of the statute; attempts to

amplify it, explain it or belittle it almost invariably lead to a reversal.”

Rodriguez v. State, 96 S.W.3d 398 (Tex. App.-Austin 2002), quoting, 1

A.R. Stout, Branch's Anno. Penal Code § 16 (2d ed.1956) (citations

omitted);   see   also    Whitson    v.       State,   495   S.W.2d   944,   946

(Tex.Crim.App.1973).

      Such has left open to interpretation, the application of a harmless error

analysis to remedy such instructions that are included over the “better

practice” philosophy. Both the Waco and Austin Courts recognized this and

others have followed suit.

      Each Court seemingly and in some way, acknowledges that “[e]rror in

a jury charge, if timely objected to in the trial court, requires reversal if the

error resulted in some harm, i.e., if the error was calculated to injure the

defendant's rights.” See Abdnor v. State, 871 S.W.2d 726, 731–32




SC                                        6
(Tex.Crim.App.1994) & Almanza v. State, 686 S.W.2d 157, 171

(Tex.Crim.App.1984) (op. on reh'g).

      Clearly, the actual degree of harm “must be assayed in light of the

entire jury charge, the state of the evidence, including the contested issues

and the weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole.”

Saunders v. State, 817 S.W.2d 688, 690 (Tex.Crim.App.1991) (quoting

Almanza, 686 S.W.2d at 171). Appellant has the burden to show that he

suffered some actual harm from the charge error, and if he fails in this

endeavor, the error will not require reversal. Abdnor, 871 S.W.2d at 732.

      It cannot be argued that intentionally following a charging practice

that is not the best practice can foster proper adherence to a suitable standard

of due process. The case at hand illustrates exactly the problem with the

inclusion of the language, over express and pointed objection and further

illustrates the harm inherent in its inclusion.

      The jury question is the best evidence to demonstrate the extreme

impact such language can manifest.           So much so, that the Jury was

compelled to request further instruction and/or definition of the term

“reasonable doubt” from the Court during deliberations.           Clearly, the

language relating to that term had been discussed at length and questions



SC                                      7
remained in the minds of the jurors. It clearly had an effect on them in some

way and certainly some harm from the inclusion of this language contributed

to the conviction. The present case illustrates the manifestation of the harm,

as well as illustrates how such harm is created when the best practices are

not adhered to.

      In light of the precept that exclusion of such language is the better

practice, objections to it’s inclusion, a harm analysis and the exacerbation of

the jury note evidencing their confusion and focus on that particular

standard, all specifically evidence a ruling that adversely affected

Appellant’s rights to due process to the degree that reversal is warranted.




SC                                     8
                POINT OF ERROR NO. TWO
      THE TRIAL COURT ERRED IN ALLOWING AND
      CONSIDERING   EVIDENCE    OF   EXTRANEOUS
      CONDUCT BASED ON HEARSAY AND IN VIOLATION
      OF DEFENDANT’S DUE PROCESS RIGHTS AS
      RECOGNIZED UNDER CRAWFORD.


      During the punishment phase of the trial, the State called Francine

Varga, an investigator with Brazoria County Sheriff’s Department to detail

her investigation into a reported allegation in which Appellant was identified

as the alleged perpetrator. (See RR Vol 7, pp. 22-41). The origin of the

investigation was a complaint made via telephone by Stepahnie Harold

complaint sometime in February of 2012. This witnesses’ investigation was

a follow-up to that initial complaint and began in July 2012, five (5) months

after the initial complaint.

      Over objections based specifically on hearsay, foundation and

Crawford, the Court allowed the State to elicit testimony from Investigator

Vargas regarding the hearsay statements made to the Investigator by the

alleged complainant (Stephanie Harrold), as well as statements made during

the out-of-court identification procedure in which she purported to identify

Appellant and included the photo array lineup identification (See RR Vol. 7,

pp. 13-38 & State’s Ex. 20). Ms. Harold was subpoenaed by the State,

however did not appear.



SC                                    9
      In 1993, the Texas Legislature amended article 37.07 § 3(a) to allow

at the punishment phase of a trial, evidence of unadjudicated offenses,

however only if the State proved beyond a reasonable doubt that the offense

occurred and that the defendant committed the offense. See, Arthur v. State,

11 S.W.3d 386, 392 (Tex. App. 2000); see also, Act of May 29, 1993, 73rd

Leg., R.S., ch. 900, § 5.05, 1993 Tex. Gen. Laws 3586, (current version at

Tex.Code Crim. Proc. Art. 37.07 § 3(a)); see also Paez v. State, 995 S.W.2d

163, 167 (Tex.App.—San Antonio 1999, pet. ref'd). Presently, the State

may offer evidence of any extraneous crime or bad act that is shown, beyond

a reasonable doubt, either to have been (1) an act committed by the

defendant or (2) an act for which he could be held criminally responsible.

See Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.1999); see also

Tex.Code Crim. Proc. Art. 37.07 § 3(a). “Prior crimes or bad acts are

introduced to provide additional information which the jury may consider in

determining what sentence the defendant should receive.” See Arthur, supra,

quoting, Fields, supra at 688; Davis v. State, 968 S.W.2d 368, 373

(Tex.Crim.App. 1998).

      This is permissible only after the trial judge has made a threshold

determination that evidence regarding an extraneous crime is relevant and

that such evidence may not be considered in assessing punishment until the



SC                                   10
fact-finder is satisfied beyond a reasonable doubt that these prior acts are

attributable to the defendant. See, Fields, supra at 688; & Mitchell v. State,

931 S.W.2d 950, 953 (Tex.Crim.App. 1996). Once the threshold is met, the

fact-finder may use the evidence however it chooses in assessing

punishment. See Fields, supra at 688.

      Such is not unfettered and without limitation. This restriction is found

in the Confrontation Clause, which affords a criminal defendant the right to

confront the witnesses against him. See U.S. Const. Amend. VI; see also,

Molina v. State, 450 S.W.3d 540, 549-50 (Tex. App. 2014) & Burch v. State,

401 S.W.3d 634, 636 (Tex.Crim.App. 2013). One such limitation restricts

the use of “testimonial evidence” unless (1) the witness appears at trial and

is cross-examined or (2) the witness is unavailable and the defense had an

opportunity to cross-examine. Molina, supra at 550, citing Burch, supra at

636. “[T]estimonial statements are those ‘that were made under

circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.’” Id. (quoting

Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004)).

      In order to properly evaluate Appellant’s complained of error, the first

inquiry must be whether the statements are testimonial hearsay. In order to



SC                                      11
do so, one must look upon the objective purpose of the interview or

interrogation. See, Almaguer v. State, No. 13-12-00605-CR, 2014 WL

5088386, at *15 (Tex. App. Oct. 9, 2014), petition for discretionary review

refused (Mar. 18, 2015) citing, De La Paz, 273 S.W.3d at 680 (citing Davis,

547 U.S. at 822–23, 126 S.Ct. 2266).

      Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted. See Tex.R. Evid. 801(d). “Generally speaking, a hearsay

statement is ‘testimonial’ when the surrounding circumstances objectively

indicate that the primary purpose of the interview or interrogation is to

establish or prove past events potentially relevant to later criminal

prosecution.” Id. (citing Davis, 547 U.S. at 822–23, 126 S.Ct. 2266).

Clearly, such is the case at hand. All statements attributable to the out-of-

court declarant are made to an investigator who is conducting interviews that

could ultimately be used to attempt to prosecute the Defendant and for

which he was indicted.

      While the U.S. Supreme Court, declined to provide a comprehensive

definition of the term in Crawford, guidance was given us in the form of

examples of what falls within the category. See Wall v. State, 184 S.W.3d

730, 734 (Tex.Crim.App.2006), Hereford v. State, 444 S.W.3d 346, 350



SC                                     12
(Tex. App. 2014) & Langham v. State, 305 S.W.3d at 576. These examples

include: 1) ex parte in-court testimony or the functional equivalent, such as

affidavits, custodial examinations, or prior testimony, 2) pretrial statements

that a declarant would expect to be used in a prosecution, 3) extrajudicial

statements in formalized materials such as affidavits, depositions, prior

testimony, or confessions, and 4) statements made under circumstances that

would lead an objective witness to believe it would be used in a future

judicial proceeding.

        The Crawford Court also specified that the term “testimonial”

includes statements taken by police officers during interrogations and noted

that it was using the term “interrogation” in a colloquial rather than a

technical legal sense. Id. at 52, 53 n. 4, 68, 124 S.Ct. 1354. To illustrate this

point, the Court asserted that the declarant's recorded statement, “knowingly

given in response to structured police questioning,” qualified as testimonial

under any conceivable definition of “interrogation.” Id. at 53 n. 4, 124 S.Ct.

1354.

        Texas courts generally have looked to the degree of formality of a

declarant's interaction with police, the purpose and structure of police

questioning, and the likelihood that the declarant expects that the statements

could be used in a criminal prosecution and further delineates that



SC                                     13
testimonial statements “involve a declarant's knowing responses to

structured questioning in an investigative environment or a courtroom

setting where the declarant would reasonably expect that his or her responses

might be used in future judicial proceedings,” and that the procedure used to

procure the statement determines whether the statement is testimonial. Tyler,

167 S.W.3d at 553 (citing Scott v. State, 165 S.W.3d 27, 46 (Tex.App.-

Austin 2005, pet. stricken)); Wiggins v. State, 152 S.W.3d 656, 659

(Tex.App.-Texarkana 2004, pet. ref'd) (citing United States v. Saget, 377

F.3d 223, 228 (2nd Cir.2004)2.

       The case at hand presents an investigator who is investigating

allegations of improper and/or illegal conduct of a police officer, made by a

citizen (Harold). The investigator contacted Harold, questioned her about

the report in an on-going investigation and presented her with a photo array

requesting that she identify the person that is the perpetrator. These facts

demonstrate that the setting was sufficiently formal and structured to qualify

as a police interrogation and the complaining citizen reasonably could have


2
  Gutierrez v. State, 150 S.W.3d 827, 830 (Tex.App.-Houston [14th Dist.] 2004, no pet.)
(holding that accomplice's videotaped statement to police after defendant's arrest was
testimonial); Lee v. State, 143 S.W.3d 565, 570–71 (Tex.App.-Dallas 2004, pet. ref'd)
(holding that statement was testimonial because circumstances were sufficiently formal
when declarant made the statement during a traffic stop in response to police questioning
and the statement was videotaped); Brooks v. State, 132 S.W.3d 702, 707 (Tex.App.-
Dallas 2004, pet. ref'd) (holding that co-defendant's written custodial statement made
during investigation of charged offense was testimonial).


SC                                         14
believed that her identifications would be used in a subsequent trial of

Appellant. Lastly, the issue regarding the testimonial nature of a photo array

identification is settled as trstimonial.3

       A vast majority of the testimony given by the Investigator falls

squarely into one of the categories above and are therefore inadmissible.

The question relating to the admission of the out of court identification in the

photo array, which is also testimonial,4 further exacerbates the error.

Therefore, the admission of the vast majority of the incriminating out-of-

court testimonial statements violated appellant's Sixth Amendment rights,

which is constitutional error.

       When the record in a criminal case, such as this reveals constitutional

error, reversal of a judgment of conviction or punishment is required unless

a determination beyond a reasonable doubt that the error did not contribute

to the conviction or punishment. See Almaguer v. State, No. 13-12-00605-

CR, 2014 WL 5088386, at *16 (Tex. App. Oct. 9, 2014), petition for

discretionary review refused (Mar. 18, 2015) & Tex.R.App. P. 44.2(a).

       The Court of Criminal Appeals has identified several relevant factors

for appellate courts to examine when determining whether constitutional


3
  Walker v. State, 180 S.W.3d 829, 833-34 (Tex. App.-Houston [14th Dist.]
2005)
4
  Id.

SC                                       15
error under Crawford may be declared harmless beyond a reasonable doubt,

namely: 1) how important was the out-of-court statement to the State's case;

2) whether the out-of-court statement was cumulative of other evidence; 3)

the presence or absence of evidence corroborating or contradicting the out-

of-court statement on material points; and 4) the overall strength of the

prosecution's case. Id., citing, Langham v. State, 305 S.W.3d 568, 582

(Tex.Crim.App.2010).

      This case presents the Court with a situation where the State

supported the allegation by calling one (1) witness, therefore these

statements were: 1) essential; 2) in no way cumulative of the evidence

presented earlier in the trial; and 3) there was no corroboration of the out-of-

court statement(s) on material points.

      An application of the law to the record mandates reversal and remand

for a new punishment hearing and sentencing.



                                  PRAYER

      In accordance with T.R.A.P. 44.2, Appellant respectfully prays this

Court grant the relief entitled to Appellant and remand this matter for further

and appropriate proceedings consistent with this Court’s opinion.




SC                                       16
                                      Respectfully submitted,




                                      Scot Courtney
                                      Attorney for Appellant
                                      P.O. Box 787
                                      San Marcos, Texas 78667-0787
                                      512-392-9292
                                      512-532-6766 FAX
                                      E-Mail: sanmarcoslaw@gmail.com
                                      State Bar #00790515


                      CERTIFICATE OF SERVICE

       By affixing his signature to the foregoing instrument, Scot Courtney
certifies that a true and correct copy of the same has been delivered to the
office of the Harris County District Attorney, on this the 6th day of
November, 2015.




                                      Scot Courtney

                   CERTIFICATE OF COMPLIANCE

       By affixing his signature to the foregoing instrument, Scot Courtney
certifies that the foregoing Brief complies with T.R.A.P. 9.4(i)(2) and
contains 3,219 words, as reflected by the word count of the computer
program used to prepare the document.




                                      Scot Courtney




SC                                   17
