                                 NO. 07-02-0145-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL A

                                 AUGUST 17, 2004

                        ______________________________


                     CLIFFORD SCOTT MEDLEY, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

            FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

             NO. 35,170-C; HONORABLE PATRICK A. PIRTLE, JUDGE

                       _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                             MEMORANDUM OPINION


      Appellant Clifford Scott Medley appeals from his conviction for murder and

punishment of 40 years incarceration. We affirm.


      On or about May 30, 1995, Frankie Steinbrecher was strangled to death in Potter

County. Appellant was indicted for murder in connection with Steinbrecher’s death.
       Appellant pled not guilty to the charge and was tried to a jury in April 1998. This

court, in Cause No. 07-98-0225-CR, reversed the resulting conviction and remanded the

case for new trial.


       Following retrial, held from March 5-8, 2002, a jury found appellant guilty of murder

and assessed his punishment at 40 years imprisonment in the Texas Department of

Criminal Justice, Institutional Division. Appellant timely filed a motion for new trial and

gave notice of appeal.


       Appointed counsel for appellant has filed a Motion to Withdraw as counsel and a

brief in support thereof. In support of the motion to withdraw, counsel has certified that,

in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967), the record has been diligently reviewed and that in the opinion of counsel, the

record reflects no reversible error or grounds upon which a non-frivolous appeal can

arguably be predicated. Counsel thus concludes that appeal would be frivolous. Counsel

has discussed why, under the controlling authorities, there is no arguably reversible error

in the trial court proceedings or judgments. See High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978).


       Counsel has certified that a copy of the Anders brief and Motion to Withdraw as

Counsel have been served on appellant, and that counsel has appropriately advised

appellant of his right to review the record and file a pro se response. Appellant has filed

a pro se response. By his response, appellant presents 20 issues. These 20 issues are

generally related to four substantive areas: (1) whether the retrial of appellant offended the


                                             -2-
Constitutional guarantee against double jeopardy, (2) whether the trial court erred in

admitting appellant’s testimony from the first trial to impeach his inconsistent testimony at

the retrial, (3) whether the trial court acted in such a precipitate and reckless manner that

it consciously disregarded appellant’s Constitutional rights, and (4) whether there was

sufficient factual evidence presented to support the conviction.


       Issue groups one through three in the pro se response turn on the question of the

propriety of the trial court’s admission of appellant’s prior testimony for purposes of

impeachment.1 We agree with appellate counsel that prior testimony is admissible for

impeachment purposes if freely and voluntarily given, even if obtained in violation of

prophylactic rules designed to protect Constitutional rights. See Michigan v. Harvey, 494

U.S. 344, 351, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990); Harris v. New York, 401 U.S. 222,

224-25, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Garza v. State, 18 S.W.3d 813, 826-27

(Tex.App.–Fort Worth 2000, pet. ref’d).


       Prior to allowing the State to use appellant’s prior testimony to impeach his

testimony in the present case, the trial court held a hearing on the voluntariness of the prior

testimony and found that the testimony was voluntarily given. There is sufficient evidence

in the record of the retrial and the first trial to support the trial court’s voluntariness finding.



       1
         Appellant’s double jeopardy arguments depend on a finding that the trial court
acted intentionally or with conscious disregard of appellant’s Constitutional rights in
admitting the prior trial testimony and, therefore, our conclusion that the trial court did not
err in admitting this testimony for impeachment purposes resolves appellant’s double
jeopardy complaints. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d
1 (1978); Ex parte Mitchell, 977 S.W.2d 575 (Tex.Crim.App. 1997); McGlothlin v. State,
896 S.W.2d 183, 188 (Tex.Crim.App. 1995).

                                                -3-
The trial court did not abuse its discretion in admitting the prior testimony for impeachment

purposes. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). The

evidence is similar to that presented at the first trial and referenced in our opinion on the

first appeal. The evidence is clearly legally and factually sufficient to support conviction.


       We have made an independent examination of the record to determine whether

there are any non-frivolous grounds on which an appeal could arguably be founded. See

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State,

813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds. We agree

with appellate counsel that the appeal is without merit.


       Accordingly, counsel’s Motion to Withdraw is granted. The judgment of the trial

court is affirmed.




                                                   Phil Johnson
                                                   Chief Justice


Do not publish.




                                             -4-
