                                                                             ACCEPTED
                                                                         06-15-00114-CR
                                                              SIXTH COURT OF APPEALS
                                                                    TEXARKANA, TEXAS
                                                                    12/4/2015 9:58:30 AM
                                                                        DEBBIE AUTREY
                                                                                  CLERK


             IN THE COURT OF APPEALS FOR THE
          SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                        FILED IN
                                                 6th COURT OF APPEALS
                                                   TEXARKANA, TEXAS
GEORGE WASHINGTON SHARPER      §                 12/4/2015 9:58:30 AM
   APPELL~T                    §                     DEBBIE AUTREY
                                                         Clerk
                               §
    v.                         §       No. 06-15-00114-CR
                               §
THE STATE OF TEXAS,            §
   APPELLEE                    §



                      STATE'S REPLY BRIEF

                FROM THE 196m DISTRICT COURT
                     HUNT COUNTY, TEXAS
                  TRIAL CAUSE NUMBER 28,240
         THE HONORABLE JOE CLAYTON, JUDGE PRESIDING


                               NOBLE DAN WALKER, JR.
                               District Attorney ·
                               Hunt County, Texas

                               G CALVIN GROGAN V
                               Assistant District Attorney
                               P. 0. Box 441
                               41h Floor Hunt County Courthouse
                               Greenville, TX 75403
                               (903) 408-4180
                               FAX (903) 408-4296
                               cgrogan@huntcounty.net
                               State Bar No. 24050695
                                     TABLE OF CONTENTS


TABLE OF CONTENTS .......................................................................................... 2

TABLE OF AUTHORITIES ..................................................................................... 3

STATEMENT OF CASE ........................................................................ 6

ISSUES PRESENTED ......................................................................... 7

SUMMARY OF THE STATE'S ARGUMENTS .................................................... 7

STATEMENT OF FACTS ....................................................................................... 8

STATE'S RESPONSE TO POINT OF ERROR ONE ........................................... 13

     STANDARD OF REVIEW ................................................................ 13

     MARKKUS STEPHENSON WAIVED HIS FIFTH AMENDMENT
     RIGHT AND APPELLANT CANNOT CLAIM IT FOR HIM ...................... 13

     STATEMENTS AGAINST PENAL INTEREST ............................................ 17

     NO CONFRONTATION CLAUSE VIOLATION BECAUSE
     MARKKUS STEPHENSON FEIGNED MEMORY LOSS AT TRIAL ........ 17

STATE'S RESPONSE TO POINT OF ERROR TW0 ........................................... 20

     STANDARD OF REVIEW ................................................................ 20

     ADMISSION BY A PARTY OPPONENT ...................................................... 21

     STATE EXHIBIT NOS. 16B AND 100 ........................................................... 24

     TRIAL COURT CONDUCTED A PROPER 404B BALANCE TEST .......... 26

PRAYER .................................................................................................................. 28

CERTIFICATE OF SERVICE ................................................................................ 29




                                                                                                                 2
                                   INDEX OF AUTHORITIES


Federal Cases
California v. Green, 399 U.S. 149,90 S.Ct. 1930 (1970) .................................... 18
Crawford v. Washington, 541 U.S. 36, 52 (2004) ........................................... 17,19
Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292 (1985) ................................. 18
Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178 (1976) ..................... 14
Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136 (1984) ....................... 14
Mitchell v. United States, 526 U.S. 314, 330, 119 S.Ct. 1307 (1999) .................. 14
United States v. Alvarado-Valdez, 521 F.3d 337 (5th Cir. 2008) .......................... 20
United States v. Elizondo, 502 Fed. Appx. 369 (5th Cir. 2012) ............................ 20
United States v. Flores, 985 F.2d 770 (5th Cir. 1993) .......................................... 20
United States v. Owens, 484 U.S. 554, 108 S.Ct. 838 (1988) ......................... 18-19

Texas Cases
Alvarado v. State, 912 S.W.2d 199 (Tex. Crim. App. 1995) ............................... 23
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) ......................... 20
Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988) ....................... 20
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) ...................... 22
Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981) .......................... 25
Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013) ................................. 14
Ex Parte Dangelo, 376 S.W.3d 776, 781 (Tex. Crim. App. 2012) ...................... 14
Godwin v. State, 899 S.W.2d 387 (Tex. App.- Houston [14th Dist.] 1995,
pet. refd) ........................................................................................................... 22-23
Grayson v. State, 684 S.W.2d 691 (Tex. Crim. App. 1984) ................................ 16
Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996) ......................... 21
Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984) ..................... 20,28
Jackson v. State, 424 S.W.3d 140 (Tex. App.- Texarkana, 2014) ...................... 21
Lacy v. Lacy, 922 S.W.2d 195 (Tex. App.- Tyler 1995) .................................... 17
Lester v. State, 120 S.W.3d 897, 900 (Tex. App.- Texarkana, 2003) ................ 17
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) ............. 21,25
Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992) ........................... 20
Peoples v. State, 928 S.W.2d 112 (Tex. App.- Houston [1st Dist.] 1996) .......... 22
Ransom v. State, 120 S.W.3d 428, 433 (Tex. Crim. App. 1974) ......................... 24
Rodriguez v. State, 903 S.W.2d 405 (Tex. App.- Texarkana, 1995) .................. 16
Simmons v. State, 457 S.W.2d 570 (Tex. Crim. App. 1970) ................................ 25
Smith v. State, 595 S.W.2d 120, 123 (Tex. Crim. App. 1980) ............................. 28
Walter v. State, 267 S.W.3d 883 (Tex. Crim. App. 2008) ................................... 16
Walker v. State, 406 S.W.3d 590,596 (Tex. App.- Eastland 2013) ..................... 17


                                                                                                                  3
Woodallv. State, 336 S.W.3d 634 (Tex. Crim. App. 2011) ............................ 18-19

U.S. Const., Texas Const., Texas Rules of Evidence
U.S. CoNST. Amend. 5 .......................................................................................... 13
TEX. CONST. ART. 1 Sec. 10 (Vernon 2012) ......................................................... 13
TEX. RULES OF EVID. R.404( a)-(b) (Vernon 2011) ............................................... 24
TEX. RULES OF EVID. R. 801(e)(2) (Vernon 2014) ............................................... 22
TEX. RULES OF EVID. R. 804(a) (West 2014) ........................................................ 15
TEX. RULES OF EVID. R. 803(24) (Vernon 2012) ............................................. 15-17




                                                                                                         4
              IN THE COURT OF APPEALS FOR THE
           SIXTH DISTRICT OF TEXAS AT TEXARKANA


GEORGE WASHINGTON SHARPER                     §
   APPELLANT                                  §
                                              §
      v.                                      §    No. 06-15-00114-CR
                                              §
THE STATE OF TEXAS,                           §
   APPELLEE                                   §



                            STATE'S REPLY BRIEF



TO THE HONORABLE COURT OF APPEALS:

      NOW COMES the State of Texas, Appellee, in this appeal from
Cause No. 28,240 in the 196th District Court in and for Hunt County, Texas,
Honorable Joe Clayton, Presiding, now before the Sixth District Court of
Appeals, and respectfully submits this its brief to the Sixth District Court of
Appeals in support of the judgment of conviction and sentence in the court
below.




                                                                                  5
                             Statement of Case

      Appellant was indicted on June 22, 2012, for Capital Murder. CR

Vol.l.p.15. Appellant was arraigned on November 28, 2012. CR Vol.l.p.9.

Following an informal recusal request made by the Appellant, Honorable

Judge Joe Clayton was assigned the case on September 12, 2013. CR

Vol.l.p.39. On October 15, 2013, the State filed a Motion Waiving Death

Penalty Punishment. CR. Vol.l.p.55. The case was set for pretrial on

February 28, 2014, and trial on March 24, 2014. CR Vol.l.p.39. An agreed

continuance was granted on February 24, 2014, and case was reset for jury

trial on June 30, 2014. CR Vol.l.p.75. Another agreed continuance was

granted on June 6, 2014, and case was eventually reset for jury trial on

October 20, 2014. CR Vol.l.p.91. Appellant's continuance motion was

granted on October 10, 2014, and case was reset for jury trial on February

23,2015. CR Vol.l.p.95.

      Appellant was found guilty by a jury as charged in the indictment on

April16, 2015. CR Vol.l.p.206. The Trial Judge assessed automatic

punishment at life without parole. CR Vol.l.p.208. Appellant gave oral

notice of appeal and filed a Motion for New Trial on May 18, 20 15. CR

Vol.l.p.215. The State filed its Response to Appellant's Motion for New

Trial on June 16, 2015. CR Vol.l.p.254. After conducting an evidentiary



                                                                             6
hearing, the Trial Court denied Appellant's Motion for New Trial on June

30,2015. CR Vol.l.p.317. Appellant then gave written Notice of Appeal on

July 10,2015. CR Vol.l.p.318.

                          ISSUES PRESENTED

Issue 1. Did Trial Court commit reversible error in admitting out-of-

court statements of co-actor Markus Stephenson?

Issue 2. Did the Trial Court abuse its discretion by admitting evidence

of an extraneous offense during the guilt-innocence phase of trial?

                   S~YOFTHEARGUMENT


1. Trial Court properly admitted co-actor Markkus Stephenson's out-of-

   court statements as statements against penal interest. There was no

   Crawford violation because Markkus testified at trial. Even ifMarkkus

   Stephenson had not waived his ·Fifth Amendment right against self-

   incrimination when he pled guilty, he would only be considered

   "unavailable" for questions concerning his involvement in other crimes,

   not Appellant's or his involvement in this specific crime.

2. Trial Court did not abuse its discretion by allowing Carla Thornton to

   testify about both the charged offense and an extraneous offense that

   connected Appellant to a handgun used in both crimes. Carla Thornton's

   credibility was a jury determination.



                                                                             7
                             Statement of Facts

      On June 29, 2007, thirty-one year old David Olivares was found

unconscious by Greenville Police Officer Phillip Spencer, just inside his

front glass pane door. RR Vol.5.pp.43, 83, 140, 188; RR Vol.6.p.24; State

Exhibit No. 30. David died that evening as a result of a single gunshot to the

chest. RR Vol.5.pp.27, 47, 53, 147, 153; State Exhibit No.4. Although no

firearms were recovered at the crime scene, a single spent bullet was found

lodged in the living room far wall, in a direct line from the front door. RR

Vol.6.pp.29-30. Two shell casings were found inside David's front door,

and a third shell casing was found on David's front screened porch. RR

Vol.5.pp.187-90; RR Vol.6.pp.23-5. All ofthe firearms evidence was

collected and submitted to the Department of Public Safety ("DPS") Crime

Lab in Tyler for ballistics testing. RR Vol.6.p.34; State Exhibit Nos. 90A-

90D. Dallas County Medical Examiner Dr. Janice Townsend-Parchman

located pseudo-stippling on David's body during her autopsy, which was

consistent with the bullet traveling through an object like a glass door before

striking the body. RR Vol.5.pp.148, 172; RR Vol.6.p.26. Due to the

presence of pseudo stippling, Dr. Townsend-Parchman was unable to

estimate the firing distance. RR Vol.5.p.149. Once Greenville Police

Department ("GPD") arrived at the crime scene, David never regained



                                                                               8
consciousness and was unable to identify his killer. RR Vol.5.pp.27-30, 123.

There were no eyewitnesses, but at least one of David's roommates heard

the gunshots. RR Vol.5.p.82; RR Vol.7.p.65. According to David's

roommate Armando Soto, he had no known enemies at the time of his death.

RR Vol.5.pp.74, 87.

      On June 29, 2007, two friends named Uzzivil Torres and Cleonel

Rinconcillo visited David's house that afternoon but had left hours before

the shooting. RR Vol.5.pp.76, 78, 118, 195. David's Uncle Cannuto may

have also been at the house at the time of the shooting. RR Vol.5.pp.89, 112;

RR Vol.7.pp.89-97. Greenville Police obtained a written affidavit from

Uzzivil. RR Vol.5.p.205.

      A few days after the shooting, David's roommates went down to GPD

and participated in a photo lineup of possible suspects, as well as provided

written statements. RR Vol.5.pp.80, 120; RR Vol.7.p.54. Armando

identified a female suspect because both Uzzivil and law enforcement had

told him that she may be a suspect. RR Vol.5.pp.80, 91, 197. Uzzivil had

also said this woman had come by the house on June 29th and made threats.

RR Vol.5.p.80. Prior to the photo lineup, Uzzivil had passed along the

information about the female to law enforcement. RR Vol.5.p.195. This

woman was known by David's roommates as "La Diabla," and by law



                                                                               9
enforcement as Vanessa Stevenson Alexander RR Vol.5.pp.92, 94, 197, 200.

Armando saw "La Diabla" at the house a few weeks before, but never with

David. RR Vol.5.pp.80-l. Roberto Olivares picked out "La Diabla" as well

because she was the only face he recognized. RR Vol.5.p.121. Roberto had

last seen "La Diabla" at their house three months prior, and had never seen

her with David. RR Vol.5.pp.122-23.

      GPD Detective Warren Mitchell got assigned to the case. RR

Vol.5.p.193. Besides "La Diabla", there were no suspects at this point in the

investigation. RR Vol.7.pp.52, 60-65. Besides the firearms evidence found

at the crime scene that was submitted to DPS for ballistics testing, the case

went cold for over four years. RR Vol.5.pp.200, 208; RR Vol.6.p.154; RR

Vol.7.p.45; State Exhibit Nos. 90A-90D; State Exhibit No. 21.

      On September 26, 2011, Detective Mitchell interviewed Carla

Thornton on an unrelated narcotics trafficking conspiracy. RR Vol.7.pp.38-

39. At the time of the interview, Carla was in custody on federal charges at

the Fannin County Jail. RR Vol.6.pp.84-5. Towards the end of the

interview, Carla began to discuss a murder that occurred on her street several

years earlier. RR Vol.7.p.117.

      At the time of David's killing, Appellant and Markkus Stephenson

lived in Carla's home on Henderson Street, just a few blocks down from the



                                                                                10
crime scene. RR Vol.7.p.123. The night ofDavid's murder, Carla observed

Appellant and Markkus bust through her door without shirts and out of

breath, claiming they had just killed a guy because they needed money. RR

Vol.6.pp.81-2. Carla noticed a gun in Appellant's hand. RR Vol.6.p.81.

Carla kept these observations to herself because of her daughter Courtney's

relationship with the Appellant, and she did not want to be labeled a snitch.

RR Vol.6.pp.83, 95.

      Several months after the shooting, Carla overheard the Appellant

talking about the gun used in the murder was seized by the Commerce Police

Department in a robbery. RRVol.6.pp.87-8. Carla passed along this

information to Det. Mitchell. RR Vol.6.p.85; RR Vol.7.p.42. Detective

Mitchell went to the Commerce Police department to retrieve the firearm

described by Carla and to review the Commerce Police Arrest Report for

that 2007 robbery. RR Vol.7.p.42.

      On July 23, 2007, Commerce Police conducted a traffic stop on a

vehicle reported to be involved in a robbery. RR Vol.6.p.l24. The vehicle

had three occupants, including the Appellant in the rear passenger side seat.

RR Vol.6.p.126. Commerce Officer Neal Johnson, the arresting officer,

identified the three occupants which also included co-actor Markkus

Stephenson. RR Vol.6.p.136. During a search of the vehicle, Officer Ball



                                                                            11
found a chrome Davis Industries .380 semi-automatic handgun in the

floorboard of the rear passenger seat. RR Vol.6.p.127; State Exhibit No.

16B. Officer Johnson identified the gun's serial number on his chain of

custody label and secured it in the Commerce Evidence locker, where it sat

for over four years. RR Vol.6.pp.138-9, 142.

      Detective Mitchell then interviewed Carla's daughter Courtney

Massey and Markkus Stephenson's uncle Herb Anderson. RR Vol.7.pp.70,

120. Courtney is also married to the Appellant (Carla's other daughter

Raven Smith was the girlfriend of the co-actor Markkus Stephenson. RR

Vol.6.p.45; RR Vol.7.pp.70, 79.

      On December 9, 2011, Detective Mitchell submitted additional

firearm evidence, including the handgun stored at the Commerce Evidence

locker, to DPS for further ballistics testing. RR Vol.6.p.162, p.177;

Vol.7.p.44; State Exhibit 28B; State Exhibit No. 16B. DPS Ballistics expert

Wade Thomas issued his report on January 24, 2012, indicating that after

ballistics testing was performed the newly submitted firearm was in fact the

same weapon that fired the spent bullet and discharged the three shell

casings found at the crime scene. RR Vol.6.p.164; State Exhibit No. 22.

      Based upon Detective Mitchell's interview of Carla Thornton, a

review of the Commerce Police Arrest Report for the July 23, 2007 robbery



                                                                           12
involving the Appellant, and a review of the DPS Firearms report issued on

January 24, 2012, he interviewed Markkus Stephenson at the Luther Unit of

the Texas Department of Corrections on June 4, 2012. RR Vol.7.pp.34, 36.

After Stephenson's interview with Detective Mitchell, he and the Appellant

were charged with capital murder. RR Vol.7.p.36.



                               ARGUMENT

1. Markkus Stephenson's Statements from a Custodial Interview

   Properly Admitted as a Statement Against Penal Interest

      a. Standard of Review

      Appellant complains that when Markkus Stephenson invoked his Fifth

Amendment Right, he became unavailable to testify at trial and thus

implicated Appellant's Sixth Amendment Right to Confront witnesses. "No

person shall be compelled in any criminal case to be a witness against

himself or herself." U.S. CONST. Amend. 5; TEX. CONST. ART. 1 Sec. 10

(Vernon 2012).

      b. Markkus Stephenson Waived His        5th   Amendment Right When

         He Pled Guilty

   Markkus Stephenson stood charged with committing the same crime as

the Defendant, but pled guilty to the lesser included offense of Murder on



                                                                             13
February 18, 2013. RR Vol.12.pp.18-30. By pleading guilty, Markkus

Stephenson knowingly and voluntarily waived certain constitutional rights,

including his right against self-incrimination, his ability for a direct appeal,

and his ability to file a writ for post-conviction relief. RR Vol.12.p.26. "A

criminal defendant who enters a plea of guilty has by definition relinquished

his .... Fifth Amendment privilege against self-incrimination." Davison v.

State, 405 S.W.3d 682 (Tex. Crim. App. 2013). "[O]nce direct appeals are

over, the defendant loses his right to assert his right against self-

incrimination as to that specific crime." Mitchell v. United States, 526 U.S.

314, 330, 119 S.Ct. 1307 (1999); See Defendant Exhibit No. 1-MNT.

   Even if Stephenson's Fifth Amendment privilege had not been waived, it

applied only to incriminating statements against himself for future criminal

prosecutions. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136

(1984). "Unless the government seeks testimony that will subject its giver to

criminal liability, the constitutional right to remain silent absent immunity

does not arise." Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178

(1976). "The Fifth Amendment is not implicated where the compelled

statements can no longer result in criminal liability." Ex Parte Dangelo, 376

S.W.3d 776, 781 (Tex. Crim. App. 2012). Stephenson was available for

cross-examination for any questions regarding his involvement in this crime,



                                                                                14
and more importantly for questions regarding the truthfulness of his

statements against Appellant. Markkus Stephenson knew at the time he

entered his guilty plea he would be called as a witness by the State and be

expected to testify truthfully against Appellant for this specific crime. RR

Vol.7.pp.29-30.

      c. Stephenson's Refusal to Testify

   The State did not admit Stephenson's prior statements under Rule 804,

which requires a showing of unavailability, but under Rule 803(24) that does

not focus on the declarant's availability. TEX. RULES OF EVID. R. 803(24)

(Vernon 2012). Markkus Stephenson was declared a hostile witness on the

stand by the Trial Court, and refused to answer questions presented by the

State. RR Vol.6.pp.192-98.

STATE: what are you in jail for? Let's start with that.
WITNESS: Before you waste my time or your time, I ain't got nothing to
say.
STATE: Well, in a minute I'll ask the judge to ask you to answer questions.
WITNESS: I'll plead the fifth.
STATE: Well before you can plead the fifth, are you facing criminal
charges?
WITNESS: I'm telling you, I ain't got nothing to say. You're wasting your
time asking me questions.
STATE: Are you serving a life sentence for this case right now?
WITNESS: [no response]
COURT: Mr. Stephenson, you need to answer that question, because that
does not put you in any jeopardy.
RR Vol.6.pp.192-93.




                                                                               15
   The Trial Court instructed Stephenson to only answer questions by the

State that did not violate his Fifth Amendment right against self-

incrimination; in other words any statements that would only implicate the

Appellant and himself. See Rodriguez v. State, 903 S.W.2d 405 (Tex. App.

-Texarkana, 1995); Grayson v. State, 684 S.W.2d 691 (Tex. Crim. App.

1984). Stephenson was not compelled to give any testimony that could

incriminate him of any crime except for the murder to which he had already

pled guilty. See Grayson, 684 S.W.2d at 695 (the Trial Court cannot compel

a witness to answer unless it is perfectly clear, from a careful consideration

of all the circumstances in the case, that the witness is mistaken in asserting

the privilege, and that the answer cannot possibly tend to incriminate the

witness). The only substantive evidence admitted from Stephenson was a

redacted transcript from Stephenson's custodial interview, and that evidence

was only admitted as a Statement Against Penal Interest. See TEX. RULES OF

EVID. R. 803(24) (Vernon 2012). "Self-exculpatory statements that shift the

blame to another must be excluded, but self-incriminating and blame-sharing

statements between a defendant and co-defendant are admissible." Walter v.

State, 267 S.W.3d 883 (Tex. Crim. App. 2008).

      d. Stephenson's Statements Against Penal Interest




                                                                              16
      "In criminal cases, a statement tending to expose the declarant to

criminal liability is not admissible unless corroborating circumstances

clearly indicate the trustworthiness of the statement. TEX. R. EVID. 803(24)

(Vernon 2014); See Lester v. State, 120 S.W.3d 897, 900 (Tex. App.-

Texarkana, 2003). All hearsay exceptions require showing of

trustworthiness. Lacy v. Lacy, 922 S.W.2d 195 (Tex. App.- Tyler 1995).

The State satisfied the two-prong requirement for admission under Rule

803(24): Stephenson's statement tended to expose himself to criminal

liability (admitted to having a gun in his hand when the Mexican boy opened

the door), and there were corroborating circumstances that clearly indicated

the trustworthiness of the statement (Stephenson and Appellant lived

together in Carla Thornton's house at the time of the murder). See State

Exhibit No. 18; RR Vol.7.p.123.

      e. No Confrontation Clause Violation Because Markkus

         Stephenson Feigned Memory Loss at Trial

      The Sixth Amendment confrontation right applies to out-of-court

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

36, 52 (2004). "Even when a statement offered against a defendant is

admissible under evidentiary rules, the statement may implicate the Sixth

Amendment's Confrontation Clause." Walker v. State, 406 S.W.3d 590, 596



                                                                            17
(Tex. App.- Eastland 2013). The State concedes that Markkus

Stephenson's statements to Det. Mitchell triggered Sixth Amendment

protection, but disagree that Appellant's right to confrontation was violated

- Markkus Stephenson testified.

      The Supreme Comi has generally rejected the notion that a present

and testifying witness is nevertheless absent for confrontation purposes if the

witness suffers from memory loss. In United States v. Owens, 484 U.S. 554,

108 S.Ct. 838 (1988), the Supreme Comi directly addressed the ultimate

question of whether a Confrontation Clause violation could be founded upon

a witness's memory loss. Id. at 558-61, 108 S.Ct. 838; See generally

California v. Green, 399 U.S. 149, 90 S.Ct. 1930 (1970); Delaware v.

Fensterer, 474 U.S. 15, 106 S.Ct. 292 (1985) (per curiam). In Owens, the

victim testified that while he recalled telling the detective in the hospital that

appellant was his attacker, he had no actual memory of the event. Id. at 556-

57, 108 S.Ct. 838. "The Court stated that an opportunity for effective cross-

examination is not denied merely because the witness suffers memory loss,

and it is sufficient that the defendant has an opportunity to expose and probe

the memory loss." I d. at 559-60, 108 S.Ct. 838. Texas has followed

Supreme Comi precedent, even after the 2004 Supreme Court Crawford v.

Washington decision. See Woodall v. State, 336 S.W.3d 634, 644 (Tex.



                                                                                18
Crim. App.2011) (holding we agree with those cases and believe that

memory loss does not render a witness "absent" for Confrontation Clause

purposes if she is present in court and testifying).

      Similar to Owens and Woodall, there was no confrontation clause

violation because Markkus Stephenson was on the witness stand. RR

Vol.6.p.204. After being told by the Court he would not face jeopardy,

Markkus Stephenson started feigning memory loss. Markkus testified that

watching his own custodial interview would not refresh his memory. RR

Vol.6.p.195. After declaring Markkus Stephenson a hostile witness and

determining the trustworthiness of the hearsay exception, the Trial Court

allowed the State to introduce a redacted transcript ofMarkkus Stephenson's

custodial interview as statements against penal interest. RR Vol.6.p.194;

Vol.7.pp.22-26; State Exhibit No. 18.

      Appellant cannot cite a single case where it was held to be a Sixth

Amendment violation for the government to introduce a co-defendant's prior

statements after the co-defendant had already pled guilty and waived their 5th

Amendment right, and then feigns sudden memory loss on the witness stand.

Instead, the Sixth Amendment violation cases cited by Appellant involve

witnesses who either did not testify, had not pled guilty or waived their

constitutional rights, or both. CfCrawford v. Washington, 541 U.S. 36



                                                                            19
(2004); US. v. Flores, 985 F.2d 770 (5th Cir. 1993); US. vs. Alvarado-

Valdez, 521 F.3d 337 (5th Cir. 2008); US. vs. Elizondo, 502 Fed. Appx. 369

(5th Cir. 2012).

       Current legal precedent is logical because a co-defendant should not

be allowed to accept a better outcome and then later renege on his plea

agreement with the State at the co-actor's trial by either invoking his Fifth

Amendment privilege and/or feigning sudden memory loss.

      f. Error Waived

   When the State introduced Markkus Stephenson's redacted transcript

from his custodial interview into evidence, there was no objection. RR

Vol.7.p.35. Any error in admitting the evidence is cured where the same

evidence comes in elsewhere without objection. Hudson v. State, 675

S.W.2d 507, 511 (Tex. Crim. App. 1984). To preserve error, a defendant

must .... object at trial to the introduction of the offending evidence.

Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988). "[W]hen

the evidence is offered during trial and defense counsel affirmatively

represents the defendant has 'no objection' to the evidence, any alleged error

in its admission is waived, even if the error had been previously preserved

by a motion to suppress and an adverse ruling." Moody v. State, 827 S.W.2d

875, 889 (Tex. Crim. App. 1992). Even constitutional en·ors may be waived



                                                                                20
by failure to timely complain in the trial court. See Broxton v. State, 909

S.W.2d 912, 918 (Tex. Crim. App. 1995); Jackson v. State, 424 S.W.3d 140

(Tex. App.- Texarkana, 2014).



2. Trial Court Did Not Abuse Its Discretion in Allowing Carla

   Thornton to Testify About Appellant's Involvement in David's

   Murder and the Commerce Robbery

      a. Standard of Review

      Appellant has two complaints: there was not enough evidence to

prove beyond a reasonable doubt the extraneous offense, and Carla Thornton

should not have been allowed to testify. However, Appellant has made two

competing arguments, which do not support each other.

      An appellate court reviews a trial judge's decision to admit or exclude

evidence for abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02

(Tex. Crim. App. 1996). Unless a trial judge's evidentiary decision is

outside the zone of reasonable disagreement, an appellate court upholds the

ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

      b. Admissions by a Party Opponent

      At trial, Appellant tried to keep out all of Carla Thornton's testimony,

not on 404(b) grounds, but on trustworthiness and credibility issues. RR



                                                                              21
Vol.6.pp.72-73. Appellant argued that the State had to provide independent,

corroborating evidence before Carla could testify. RR Vol.6.p.74. After a

voir dire examination of Carla occurred outside the presence of the jury,

Appellant argued her proposed testimony was inconsistent with her previous

interview statements to Det. Mitchell. RR Vol.6.p72. Appellant argued that

Carla's testimony was not credible because she was receiving a benefit for

her testimony and that there were no corroborating circumstances to support

her testimony. RR Vol.6.pp.73-4. Unlike Rule 803(24), which requires a

threshold showing of trustworthiness, statements made by a party opponent

to a declarant are not considered hearsay. TEX. R. Evm. 801(e)(2) (Vernon

2014); RR Vol.6.p.58. In a jury trial where the jury is the fact finder, a

witness' credibility on purported statements made by the defendant is for the

jury to decide and not the Trial Court. See Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim. App. 1991).

      The rule exempting admissions by a patiy opponent from hearsay

definition recognizes that when dealing with admissions, concern is not

about reliability and trustworthiness of out-of-court statement, and that party

should not be allowed to exclude his own statement on ground that what he

said was untrustworthy. Peoples v. State, 928 S.W.2d 112 (Tex. App.-

Houston [1st Dist.] 1996). Admission by defendant to a third party is not



                                                                             22
hearsay and is admissible. Godwin v. State, 899 S.W.2d 387 (Tex. App.-

Houston [14th Dist.] 1995, pet. refd). Admissions are admissible because the

party against whom they are offered, being their author, is estopped from

complaining of any untrustworthiness that might inhere in them. !d. Unlike

hearsay exception for declarations against interest, statement by defendant

qualifies as an admission even if it is not against interest when made and is

not cmroborated. Id. Carla Thornton's testimony went to the weight, not

admissibility, of the evidence. See Alvarado v. State, 912 S.W.2d 199 (Tex.

Crim. App. 1995) (witness' testimony that, on night of murder, defendant's

companion stated in defendant's presence that he, defendant, and third

person had "just took somebody out" was admissible in capital murder case

as adoptive admission; defendant acquiesced by his silence in statement that

he heard and understood).

       It was not disputed that Carla had already received a ten-year federal

sentence and that sentence could be reduced based upon her cooperation in

this trial. RR Vol.6.p.91; RR Vol.7.pp.40-2. Trial Counsel impeached Carla

with her extensive criminal record and with witnesses, including her own

daughter. RR Vol.6.pp. 97-102; RR Vol.7.pp.l31-144, 151-52. Trial

Counsel also impeached Carla's motive for testifying- implying it was

solely to get her federal sentence reduced. RR Vol.6.pp.l01-04, 112-14.



                                                                                23
Despite Carla's possible motives, there were reasons for the jury to find her

credible. Carla knew about the location of the missing murder weapon. RR

Vol.6.p.85. Carla's statements to Det. Mitchell, made available to her

daughter, had strained her relationship with her daughter Courtney. RR

Vol.6.p.82, Vol.7.p.161. The Trial Court correctly decided Carla's

credibility issues were best left for the jury to decide. RR Vol.6.p.76.

      c. State Exhibit Nos.16B and 100

      The Trial Court is still the gatekeeper of evidence, including evidence

of extraneous offenses, and determines admissibility issues. Before any

extraneous offense is admissible the offense must be clearly proven and the

accused shown to have been its perpetrator. Ransom v. State, 503 S.W.2d

810, 813 (Tex. Crim. App. 1974). The Trial Court was provided a certified

copy of Appellant's robbery conviction. RR Vol.6. pp.184-87, 190; RR

Vol.7.pp.8, 14; State Exhibit No. 100.

      "Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith."

TEX. RULES OF EVIDENCE 404(a) (Vernon 2011). Prior bad acts may be

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.

TEX. RULES OF EVIDENCE 404(b) (Vernon 2011 ). "A party may introduce



                                                                               24
such evidence when it logically serves to make more probable or less

probable an elemental fact or an evidentiary fact that inferentially leads to an

elemental fact." Montgomery, 810 S.W.2d at 387. "Relevant criteria

include whether the ultimate issue was not seriously contested by the

opponent; whether the State had other convincing evidence to establish the

ultimate issue to which the extraneous misconduct was relevant; whether the

probative value of the misconduct evidence was not, either alone or in

combination with other evidence, particularly compelling; and whether the

misconduct was of such a nature that a jury instruction to disregard it for any

but its proffered purpose would not likely have been efficacious." Id. at 392.

      Rule 404(b) exceptions applied not because of the distinctive nature of

the handgun used in both crimes, but because it was the same handgun used

in both crimes. RR Vol.6.p.71. When a weapon from an unrelated offense

is being offered as extraneous offense evidence, the device must be so

unusual and distinctive as to be like a signature. Collazo v. State, 623

S.W.2d 647, 648 (Tex. Crim. App. 1981). Appellant cited cases where the

weapons were very similar, but not distinctive enough to come under the

404(b) exception. Here, it was scientifically proven through ballistic testing

to be the exact same handgun used in both crimes. RR Vol.6.p.78; see

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



                                                                             25
error for a Dallas police officer to testify about Appellant's use of a handgun

in an unrelated store robbery 11 days after the charged offense of robbery).

      d. 404(b) Balancing Test

      There are multiple reasons why Carla Thornton's testimony about the

Commerce robbery was relevant: rebuttal of a defensive theory, intent,

identity, and motive. RR Vol.6.pp.10-12. The Trial Court allowed Carla to

testify for all four specific Rule 404(b) exceptions. RR Vol.6.p.76.

      This was a four year unsolved murder case, and identity of the killer/s

was a contested issue. There was no clear explanation why David Olivares

was chosen as a victim on the night of June 29, 2007. Besides Markkus

Stephenson's interview with Det. Mitchell, Carla Thornton was the only

witness that heard Appellant and Markkus Stephenson give statements

concerning their motive, intent, and identity in David's murder. On

determining the admissibility of the extraneous offense, the Trial Court

correctly ruled that the probative value of Carla Thornton's testimony

substantially outweighed the prejudicial value. RR Vol.6.p.79.

      Using the 404(b) balancing test, the Trial Court limited the State's

ability to prove up the extraneous offense. Although the Trial Court allowed

testimony from two Commerce Police Officers, a DPS ballistics expert, and

Carla Thornton to tie the murder weapon to both cases, the Trial Court ruled



                                                                             26
that the Appellant's robbery conviction was too prejudicial and was not

admitted in the guilt phase. RR Vol.7.p.l7. While the certifiedrobbery

conviction was the best evidence to prove Appellant's guilt beyond a

reasonable doubt, the jury had no context about the robbery had the

witnesses not testified about the facts underlying the conviction. The Trial

Court's 404(b) balancing test prevented any more prejudice to the Appellant

than was necessary.

      TC: "The [state] is wanting to put a cherry on top by
      introducing extraneous offenses of prior convictions in the
      guilt ... phase of the trial, which there- there is no- there is no
      justification for that ... .in light of what they've been permitted
      to introduce up to this point. And now the prejudicial value is
      just going to totally outweigh it." RR Vol.6.pp.184-5.


      Appellant got his way at trial and the certified robbery conviction was

not admitted during the guilt phase. Appellant cannot now complain there

was not enough evidence to prove beyond a reasonable doubt that he in fact

committed the Commerce Robbery, when he argued against admission of

overwhelming evidence at trial that would have proven his guilt.

      e. Error Waived

      Assuming Carla Thornton should not have been allowed to testify

about the Appellant's involvement in the Commerce Robbery, either

because she was not credible or because it was too prejudicial, any error was



                                                                               27
waived. "It is well-established that failure to object to admission of

extraneous offenses waives the objection and presents nothing for review."

Smith v. State, 595 S.W.2d 120, 123 (Tex. Crim. App. 1980). Once

Commerce Police Officers testified that Appellant was involved in the

Commerce robbery, any error related to Carla Thornton's previous

testimony on the Commerce robbery was waived. See Hudson, 675 S.W.2d

at 511; RR Vol.6.pp.126, 136.




                                  PRAYER

      Appellant's trial was without prejudicial error. The State prays

that Appellant's conviction and sentence be affirmed.



                                              Respectfully submitted,



                                              NOBLE DAN WALKER, JR.
                                              District Attorney
                                              Hunt County, Texas
                                                   .. \   1


                                                                                .J:...O'



                                                  ~/          , - '·    .~.r_. l.__..!
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                                              G CALVIN GROGAN V
                                              Assistant District Attorney
                                              P. 0. Box 441



                                                                                           28
                                              4thFloor, Hunt County
                                              Courthouse
                                              Greenville, TX 75403
                                              State Bar No. 24050695
                                              (903) 408-4180
                                              FAX (903) 408-4296
                                               cgrogan@huntcounty.net




     CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(3)

       Relying on Microsoft Word's word count feature used to create the
State's Reply Brief, I certify that the number of words contained in this brief
is 5,628 and the typeface used is 14Font. \\ \.       /:J ·;;...\
                                                 I ' •'.   i              1I
                                                           ·~..._ ~   .,1;:~'!-, - ..F:
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                                              G CALVIN GROGAN V
                                              Assistant District Attorney

                      CERTIFICATE OF SERVICE


      A true copy of the State's brief has been mailed via first-class mail to
Katherine Ferguson, Appellant's attorney of record, today, December 4,
2015, pursuant to Texas Rules of Appellate Procedure.

                                               r(,




                                              G c~YIN GROfl'AN
                                                         ~·
                                                               v
                                              Assistant District Attorney




                                                                                          29
