                                                                                       ACCEPTED
                                                                                   14-15-00618-CR
                                                                   FOURTEENTH COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                             10/28/2015 5:37:08 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK



                           No. 14-15-00618-CR
                   _________________________________              FILED IN
                                                           14th COURT OF APPEALS
                                                              HOUSTON, TEXAS
                    IN THE COURT OF APPEALS                10/28/2015 5:37:08 PM
         FOR THE FOURTEENTH SUPREME JUDICIAL              DISTRICT
                                                           CHRISTOPHER A. PRINE
                         HOUSTON, TEXAS                             Clerk
                 _________________________________


                  EX PARTE ROBERT CLARK RHODES,

                                Appellant
                   _________________________________

                Appeal from the 400TH Judicial District Court
                        of Fort Bend County, Texas
               _______________________________________


                        BRIEF OF APPELLANT
                      ROBERT CLARK RHODES
               ________________________________________


James D. Pierce                             David M. Medina
1 Sugar Creek Center 1080                   5300 Memorial Drive, Suite 890
Sugar Land, TX 77478                        Houston, TX 77007
713-650-0150                                713-256-3969
SBN 15994500                                SBN 00000088
jim@jamespierce.com                         davidmedina@justicedavidmedina.com


                              Attorneys for Appellant
                              Robert Clark Rhodes


                            Oral Argument Requested
                    IDENTITY OF PARTIES AND COUNSEL


The following is a complete list of all the parties and their attorneys:

Appellant: Robert Clark Rhodes                 Appellee: State of Texas

Attorneys:                                     Attorneys:
 Mr. James D. Pierce                           Mr. John Harrity. III
 Texas Bar. No. 15994500                       Assistant District Attorney Fort Bend
 1 Sugarland Creek Center 1080                 County
 Sugar Land, Texas 77478                       309 South 4th Street, Suite 258
 Tel: (713) 650-0150                           Richmond, Texas 77469

 Mr. David M. Medina                           Mr. Fred Felcman
 Texas Bar No. 00000088                        Texas Bar No. 06881500
 5300 Memorial Drive, Suite 890                1422 Eugene Heimann Circle
 Houston, Texas 77007                          Richmond, Texas 77469
 Telephone: 713-256-3969                       Telephone: 281-341


 Mr. Sam W. Dick
 Texas Bar No. 05813600
 1 Sugar Creek Center Boulevard, Suite
 1045
 Sugar Land, Texas 77478-3661
 Telephone: 281-242-5555

 Mr. Terry W. Yates
 Texas Bar No. 22142600
 6750 West Loop South, Suite 845
 Bellaire, Texas 77401
 Telephone: 713-861-3100




                                           i
                      REQUEST FOR ORAL ARGUMENT

       Appellant respectfully requests oral argument. Appellant believes that oral
argument will aid the court because this case presents unique issues of law and fact
which are not often litigated in the courts of appeals. Further, the case raises serious
Constitutional and Due Process concerns involving the procedure to be followed
when another state is seeking to extradite a resident of the State of Texas without a
satisfactory showing that he is the person wanted in that state or that he committed
a crime there.




                                           ii
                                           TABLE OF CONTENTS


Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i

Request for Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

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

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

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

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument & Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

         Scope of Habeas Corpus Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

         Jurisdiction over Acts Occurring Outside Requesting State . . . . . . . . . . . 10

         Identity Affidavit is Insufficient and the Failure to Allow . . . . . . . . . . . . 15
         Cross Examination Violates Confrontation and Due Process

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Appendix

Application for Writ of Habeas Corpus filed June 19, 2015

State's Answer to Defendant's Writ of Habeas Corpus filed July 16, 2015


                                                             iii
                                       INDEX OF AUTHORITIES
Cases:

Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . 2, 8, 17, 18

Deur v. Newaygo Sheriff, 420 Mich. 440, 362 N.W.2d 698 (1985). . . . . . 7, 12, 13

Ex parte Cheatham, 95 S.W. 1077 (Tex. Crim. App. 1906). . . . . . . . . . 7, 9, 10, 16

Ex Parte Jowell, 223 S.W. 456 (Tex. Crim. App. 1920). . . . . . . . . . . . . . . . . . .7, 9

Ex parte King, 236 S.W.2d 806, 807 (Tex. Crim. App. 1951). . . . . . . . . . . . 11, 12

Hyatt v. People, 188 U.S. 691 (1903). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Blume, 443 Mich 476, 505 N.W.2d 843 (Mich. 1993) . . . . . . . . . . . . . 12

Simpson v. State, 17 S.E. 984, 92 Ga. 41 (Ga. 1893) . . . . . . . . . . . . . . . . . . . . . . 13

State v. Palermo, 579 P.2d 718, 720 (Kan. 1978) . . . . . . . . . . . . . . . . . . . . . . . . 13

Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911) . . . 7, 13, 14

Statutes and Rules:

Texas Code of Criminal Procedure Article 51.04 . . . . . . . . . . . . . . . . . . . . . . 2, 11

Texas Code of Criminal Procedure Article 51.13, Section 6 . . . . . . . . . . . 2, 12, 15

Texas Code of Criminal Procedure Article 51.13, Section 10 . . . . . . . . . . . . . . . 7

United States Constitution:

Article IV, Section 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Article III, Section 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


                                                          iv
Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 7, 14, 16




                                                      v
                            STATEMENT OF THE CASE

       Appellant Robert Clark Rhodes, applicant in the court below, appeals from

the denial of a writ of habeas corpus. A hearing was held on Appellant’s writ in trial

court cause number 15-DCR-068818 in the 400th Judicial District Court of Fort

Bend County, Texas, the Honorable Maggie Jaramillo, presiding, (CR. Supp. at p.

4). The writ concerns a Texas Governor’s Warrant based upon a request from the

State of Iowa to extradite Appellant. (CR. 161-62; RR Vol. 1 Supp). 1




1. The record on appeal consists of a one volume Clerk’s Record and Supplement (CR. and CR-
Supp.) and a two volume Reporter’s Record and Supplement (RR. and RR- Supp.).




                                             1
                       ISSUES PRESENTED


1) The Texas Governor’s warrant did not meet the requisites of Article
   51.04 of the Texas Code of Criminal Procedure, and neither the
   affidavit and complaint nor the evidence presented at the hearing
   showed that Appellant committed an act “intentionally resulting in
   a crime” in the demanding state. Did the trial court err in failing to
   grant habeas relief where the Governor’s Warrant failed to meet the
   requisites of Articles 51.04 and 51.13 § 6 of the Texas Code of
   Criminal Procedure?

2) Appellant filed a verified challenge to the jurisdiction of the
   demanding state, and provided evidence that Appellant was not in
   the demanding state. Did the trial court err in failing to consider
   territorial and Due Process challenges to the jurisdiction of the
   demanding state?

3) The Iowa Assistant Attorney General utilized Fort Bend County jail
   records and summarily argued that this was the person wanted in
   Iowa. The affidavit also conflicted with the description made in the
   complaint. Did the trial court err in failing to grant habeas relief
   where the State’s affidavit did not sufficiently identify the
   Appellant and failed to provide the basis for personal knowledge?

4) Appellant, Robert Rhodes, was not allowed to confront the witness
   (the Iowa Assistant Attorney General) who provided conclusory
   testimony that was inconsistent with the complaint and affidavit,
   but was utilized to secure a Texas governor’s warrant. Was
   Appellants’ Sixth Amendment right of confrontation violated in
   contravention of Crawford v. Washington, 541 U.S. 36, 68 (2004)?




                                   2
                            STATEMENT OF FACTS

      Appellant is a resident of Sugar Land, Texas. (RR Vol. 2 at p. 34). He sought

a writ of habeas corpus challenging a Texas Governor’s Warrant issued at the

request of the State of Iowa. The warrant was issued based upon a muddled

complaint and affidavit and a conclusory “affidavit of identifying witness” from the

prosecutor in Iowa.

      The complaint alleges that in 2011, Robert Sonfield, a Houston attorney,

informed Philip Johnston of Canada that Sonfield “represented a client who had a

legitimate claim to the lottery but wanted to remain anonymous.” (RR. Supp at p.

18). The complaint alleges that Sonfield and Rhodes, “who at all relevant times

have been residents of Houston, Texas, request[ed] Johnston’s assistance with

claiming the ticket.” (Id.). It alleges that in November of 2011, Johnston contacted

the lottery and first claimed to be the winner of the ticket, but later claimed to be

representing an “anonymous party.” (Id.). The complaint also alleges that in

December of 2011, Crawford Shaw as trustee for Hexham Investments Ltd.,

presented a claim and the winning lottery ticket to the Iowa Lottery Commission.

(Id.). Johnston was listed as the Trustor/President of Hexham Investments Ltd. (Id.).

The complaint alleges that the lottery refused to pay the claim because the

anonymous client was not identified. (Id.).


                                         3
      The complaint states that the “purchase [of the lottery ticket] was captured

and recorded with video and audio surveillance.” (Id.). It alleges that MUSL (Multi-

State Lottery Association) received a “tip that the individual in the video is the

defendant, Eddie Tipton.” It further alleges “the defendant is the Director of

Security for MUSL and lives in Iowa.” (Id.).

      An affidavit of identifying witness was provided by Robert Sand, a

prosecutor in Iowa. (RR Supp. at p. 11). He simply stated that, “I have looked at

the booking photograph of Rhodes from when recently he was arrested in Fort Bend

County, Texas, and the person in that photograph is the same Robert Rhodes that

has been charged with 2 counts of Fraud in the State of Iowa.” (RR. Supp. at p. 11).

There is no explanation as to how the prosecuting attorney in Iowa is able to identify

the accused or that he has personal knowledge of the facts alleged. He fails to state

that he reviewed any documents or fingerprints related to the investigation in Iowa,

or spoke with any witnesses from Iowa.

      In fact, the investigators in Iowa had little to no information concerning the

Appellant. In a deposition taken in Iowa in another matter, the officer who supplied

the affidavit for the complaint testified in a deposition:

             “What is it that you believe Mr. Rhodes did to commit the
             crime he's charged with?”
             [Officer Don Smith] Answer: "I can't advise you."


                                           4
(RR Vol. 2 at p 60).

             "All right. Do you have any information that he was
             fleeing the State of Iowa or fled here or was trying to
             avoid prosecution here?"

             Answer: "No."

(Id.)

             "Do you have any evidence that Mr. Rhodes had any
             contact with Mr. Johnston?"
             Answer: "Standby. That would be a question for Special
             Agent Matt Anderson."
             Question: "All right. Nothing that you developed would
             show that; is that correct?"
             "Correct."

(RR Vol. 2 at p. 61).

         Neither the prosecutor Robert Sands or Agents Smith or Anderson appeared

in Texas to testify at the extradition hearing. There was no opportunity to cross-

examine or confront these witnesses for purposes of establishing the identity of the

accused or the jurisdiction of the Iowa courts. The testimony was uncontroverted

that Appellant has never done business in Iowa and, other than having friends who

reside there, has no contacts with the State of Iowa. (RR Vol 2 at p. 65).

        During the hearing on the verified writ of habeas corpus, the Fort Bend

County prosecutor argued that Appellant could not challenge a governor’s warrant

on the grounds that the requesting state lacked personal or territorial jurisdiction


                                         5
over the accused. The prosecutor also argued that it did not matter whether the

Appellant was the person described in the complaint, but rather only whether the

Appellant was the person the Iowa prosecutor wanted. 1 A verified writ of habeas

corpus was filed challenging territorial jurisdiction and evidence was offered that

the complaint and supporting affidavit did not sufficiently identify the Appellant.

(RR Supp. 17-18). The trial court determined that the2 sufficiency of the governor’s

warrant was not an issue that could be challenged by writ of habeas corpus. (RR.

Supp. 4). Specifically, the court stated that she could not examine the jurisdiction

of the forum state, or the quality of the identification affidavit. (Id.).




         2. In this case, the Iowa prosecutor stated he wanted the person who was arrested on a
contested fugitive warrant and booked in the Fort Bend County Jail, and the complaint described
the defendant in various ways, i.e., a resident of Houston and a resident of Iowa.
         3. “The only issue that should be before the Court once a Governor's Warrant has been
issued -- you got to understand, a governor asks another governor, ‘I want this person in your
state to be extradited for a crime over here.’"(RR Vol. 2 at p. 9). “[B]ut I'm going to object every
time he wants you to go behind the warrant...” “THE COURT: I sustained your objection.” (RR
Vo. 2 at p. 24).


                                                 6
                         SUMMARY OF ARGUMENT

      Extradition under the Uniform Extradition Act and the United States

Constitution is not perfunctory. An accused who is sought by extradition in a

demanding state for actions occurring outside the demanding state has the right to

challenge the “legality of his arrest.” Tex. Code Crim. Art. 51.13 § 10; Ex Parte

Jowell, 223 S.W. 456, 457 (Tex. Crim. App. 1920). The courts of the demanding

state only have jurisdiction for acts committed in the demanding state or for acts

outside the demanding state that intentionally result in a crime in the demanding

state. Tex. Code Crim. Art. 51.13 § 6; Deur v. Newaygo Sheriff, 420 Mich. 440, 446

362 N.W.2d 698, 701 (Mich 1985); Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558,

55 L.Ed. 735 (1911). Strassheim sets the standard for limits of extra-territorial

jurisdiction under the United States Constitution. U.S. Const. Article III Section 2;

U.S. Const. Amendment 6.

      In addition, the identity affidavit is wholly insufficient. Ex parte Cheatham,

95 S.W. 1077, 1079 (Tex. Crim. App. 1906). It is not evidence of anything other

than the person who was arrested in Texas is the person arrested in Texas. (RR.

Supp. at p. 11). The witness does not explain his conclusion or the basis of his

conclusion. Further, the complaint and supporting affidavit describe the accused as

a resident of Houston, a person named “Eddie Tipton,” leading to contradictions on


                                         7
the face of the warrant. (RR. Supp at p. 18). Appellant was denied his constitutional

right to test the contradictions by cross-examination. See Crawford v. Washington,

541 U.S. 36, 68 (2004).




                                         8
                        ARGUMENT & AUTHORITIES

        I.   Scope of Habeas Corpus Inquiry

      “The courts have jurisdiction to interfere by writ of habeas corpus, and to

examine the grounds upon which an executive warrant for the apprehension of an

alleged fugitive from justice from another state is issued, and, in case the papers are

defective and insufficient, to discharge the prisoner.” Hyatt v. People, 188 U.S. 691,

710 (1903). Since the procedures to obtain a governor’s warrant are summary and

ex parte, the courts may look to parol evidence to rebut the accusations in the writ.

Ex Parte Jowell, 223 S.W. 456, 457 (Tex. Crim. App. 1920). "It is not an open

question as to the authority of courts of this state to go behind the executive warrant,

in order to examine and review the grounds upon which the Governor may have

issued his extradition warrant.” Id., (quoting, Ex parte Cheatham, 95 S.W. 1077,

1079 (Tex. Crim. App. 1906). As stated in Cheatham:

             On the other hand, the liberty of the citizen is involved,
             and the provisions of law which Congress has erected for
             his safeguard should be respected and complied with.
             These provisions are intended for the protection of the
             citizen against undue arrest and extradition, and the writ
             of habeas corpus is provided in order to protect the
             humblest as well as the highest in his or her rights and
             privileges. We hold, in this case, that the law has not been
             complied with.

Ex parte Cheatham, 95 S.W. at 1081 (finding that affidavits supporting a Texas


                                           9
Governor’s Warrant made on information and belief insufficient). Additionally,

Cheatham states that the courts are required to determine whether the requesting

state has jurisdiction over the person and the act.

             A man cannot be legally charged with crime when there
             is no jurisdiction to try him. The fact that he is so legally
             charged means that he is charged by an authority having
             a right to try him. The right to try means jurisdiction over
             the place where the crime has been committed, and over
             the person who commits it.

Id. at 1081. It is this very inquiry that the prosecutor maintained was not permitted,

arguing that Appellant could not go “behind” the warrant. The trial court erred in

determining that it was not permitted to look beyond the recitations in the Texas

Governor’s Warrant and in finding it had no authority to make further inquiry. (RR.

Supp. at p. 4). The trial court’s failure amounted in a denial of Appellant’s right to

Due Process.



        II. Jurisdiction over Acts Occurring Outside the Requesting State

      Traditionally, Article IV, Section 2 of the United States Constitution required

the demanding state to demonstrate the accused’s fugitive status by showing that he

or she was actually present at the time of the offense and subsequently fled. Hyatt

v. People, 188 U.S. 691, 711-12 (1903).            The Constitutional rule became



                                          10
incorporated in Article 51.01 of the Texas Code of Criminal Procedure:

              Art. 51.01. DELIVERED UP. A person in any other State
              of the United States charged with treason or any felony
              who shall flee from justice and be found in this State, shall
              on demand of the executive authority of the State from
              which he fled, be delivered up, to be removed to the State
              having jurisdiction of the crime.

      Article 51.04 of the Texas Code of Criminal Procedure requires five elements

be set forth in the complaint:

              1. The name of the person accused;

              2. The State from which he has fled;

              3. The offense committed by the accused;

              4. That he has fled to this State from the State where the
              offense was committed; and

              5. That the act alleged to have been committed by the
              accused is a violation of the penal law of the State from
              which he fled.

The requirement that the accused fled from the State where the offense was

committed was clearly stated in Ex parte King, 236 S.W.2d 806, 807 (Tex. Crim.

App. 1951):

              Though the charge of neglect and failure to support a
              child is of a continuous nature, the state having alleged
              the offense to have been committed on the specific date
              of September 25, 1950, and it being undisputed that
              appellant was not then, and had not been for several


                                           11
             months prior thereto, in the State of Oklahoma, appellant
             could not be said to have fled from the State of Oklahoma
             and is not therefore a fugitive from justice.

Id. Subsequent to Ex parte King, in 1965, the Texas legislature adopted the Uniform

Criminal Extradition Act, codified in the Texas Code of Criminal Procedure. Article

51.13, Section 6 provides for the extradition for certain offenses committed outside

of the requesting state but only for actions “intentionally resulting in a crime” in the

requesting state. Tex. Code Crim. P. Art. 51.13 Section 6. A negligent action or

any action which does not “intentionally result in a crime,” is not subject to

extradition under the Uniform Act. Deur v. Newaygo Sheriff, 420 Mich. 440, 446

362 N.W.2d 698, 701 (Mich 1985); People v. Blume, 443 Mich 476, 477, 505

N.W.2d 843, 844 (Mich. 1993)(extraterritorial jurisdiction over acts committed

outside the state exist only for acts intended to and do have a detrimental effect

within the state). The burden of demonstrating the territorial jurisdiction of the

requesting state rests with the prosecution. Blume, 505 N.W.2d at p. 849. The

Uniform Criminal Extradition Act’s language for permitting extradition for

intentional activities committed outside of the requesting state but having a

detrimental effect on the requesting state was derived from the Supreme Court’s

opinion in Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911);

see Newaygo Sheriff, 362 N.W.2d at 702.


                                          12
          Strassheim addressed the matter as one of the power of the state or within the

state’s jurisdiction.

                Acts done outside a jurisdiction, but intended to produce
                and producing detrimental effects within it, justify a state
                in punishing the cause of the harm as if he had been
                present at the effect if the state should succeed in getting
                him within its power.

Strassheim, 221 U.S. at 285. See also, Simpson v. State, 17 S.E. 984, 92 Ga. 41 (Ga.

1893)(discussing “jurisdiction” over acts that occurred outside of the charging

state.)

                A state does not have jurisdiction over an individual for a
                crime committed within that state when he was located
                outside the state, did not intend to commit a crime within
                the state, and could not reasonably foresee that his act
                would cause, aid or abet in the commission of a crime
                within that state.

State v. Palermo, 579 P.2d 718, 720 (Kan. 1978)(citing Strassheim v. Daily, 221

U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911). Territorial Jurisdiction is embodied

in Article III Section 2 of the United States Constitution:

                The trial of all crimes, except in cases of impeachment, shall
                be by jury; and such trial shall be held in the state where the
                said crimes shall have been committed…

It is also embedded in the Sixth Amendment to the United States Constitution:

                In all criminal prosecutions, the accused shall enjoy the
                right to a speedy and public trial, by an impartial jury of


                                            13
             the state and district wherein the crime shall have been
             committed, which district shall have been previously
             ascertained by law.


      In the present case, Appellant offered evidence that the officer who signed

the affidavit did not know what criminal actions were taken by the individual

referenced in his affidavit:

             What is it that you believe Mr. Rhodes did to commit the
             crime he's charged with?"
             [Officer Don Smith] Answer: "I can't advise you."

(RR Vol. 2 at p. 60). Testimony was also offered that Appellant was not in Iowa

and that neither Appellant nor the individual referred to as Rhodes in the complaint

fled the State of Iowa:

             "All right. Do you have any information that he was
             fleeing the State of Iowa or fled here or was trying to
             avoid prosecution here?"
             Answer: "No."

(Id.). The affidavit in support of the complaint does not state an act done by the

individual identified as Rhodes in Iowa, or any activity that a person could

“reasonably foresee that his act would cause, aid or abet in the commission of a

crime within that state.” Strassheim, 221 U.S. at 285.

      The court erred when it determined it could not go beyond the bare

allegations in the governor’s warrant to determine whether the Iowa court had


                                        14
jurisdiction and whether Appellant committed an act “intentionally resulting in a

crime” in the requesting state. (RR. Supp. at p. 4). Tex. Code Crim. P. Art. 51.13

Section 6. Accordingly, the evidence presented at the hearing fails to satisfy the

requirements of the Texas Code of Criminal Procedure and the trial court erred in

failing to grant habeas relief.



        III. Identity Affidavit is Insufficient and the Failure to Allow
            Cross Examination Violates Confrontation and Due Process

      The affidavit of identifying witness was signed by Robert Sand, the

prosecuting attorney with the Iowa attorney general’s office. (RR. Supp. at p. 11).

Sand stated, “I have looked at the booking photograph of Rhodes from when

recently he was arrested in Fort Bend County, Texas, and the person in that

photograph is the same Robert Rhodes that has been charged with 2 counts of Fraud

in the State of Iowa.” (RR. Supp. at p. 11). The prosecutor from Iowa does not state

that he that he has personal knowledge as to the identity of the Appellant, that he

knows Appellant, has ever seen a photo of the Appellant in Iowa or that Appellant

was ever identified in Iowa as being a party to the offense alleged. The prosecuting

attorney simply ordered copies of photos and fingerprints from the Fort Bend

County Texas Sheriff’s office and used those for “identification.” He fails to state



                                        15
that he reviewed any documents or fingerprints related to the investigation in Iowa,

or spoke with any witnesses from Iowa. In short, Sands concluded without basis in

fact that Appellant was the person wanted for fraud in Iowa.

      The Texas Court of Criminal Appeals has found identity affidavits based

upon information and belief to be insufficient:

                   Now, the question is made as to this: First, that it
             was made on information and belief, and not directly
             predicated upon facts within the knowledge of the affiant,
             Robert L. Hubbard. An inspection of the paper shows
             such to be the case; that is, that the affidavit was made on
             information and belief only. We hold that this was not
             sufficient.

Ex parte Cheatham, 95 S.W. at 1080. The complaint and affidavit identifies Rhodes

as a resident of Houston, Texas, or in other parts identifies a person or defendant

named “Eddie Tipton.” (RR Supp. at p. 17). It is undisputed that Appellant has

never been a resident of Houston, but has always resided in Sugar Land, Texas. At

a minimum, the Confrontation Clause of the Sixth Amendment entitled Appellant

to cross examine the Iowa Assistant Attorney General Sands about the basis of his

statements, and for an explanation of the discrepancies. Crawford v. Washington,

541 U.S. 36, 68 (2004). Appellant was denied the opportunity to do so.

      In determining the constitutional requirement for cross-examination, the

Supreme Court stated:


                                         16
The Constitution prescribes a procedure for determining
the reliability of testimony in criminal trials, and we, no
less than the state courts, lack authority to replace it with
one of our own devising.

      We have no doubt that the courts below were acting
in utmost good faith when they found reliability. The
Framers, however, would not have been content to
indulge this assumption. They knew that judges, like
other government officers, could not always be trusted to
safeguard the rights of the people; the likes of the dread
Lord Jeffreys were not yet too distant a memory. They
were loath to leave too much discretion in judicial hands.
Cf. U.S. Const., Amdt. 6 (criminal jury trial); Amdt. 7
(civil jury trial); Ring v. Arizona, 536 U.S. 584, 611-612
(2002) (SCALIA, J., concurring). By replacing
categorical constitutional guarantees with open-ended
balancing tests, we do violence to their design. Vague
standards are manipulable, and, while that might be a
small concern in run-of-the-mill assault prosecutions like
this one, the Framers had an eye toward politically
charged cases like Raleigh's -- great state trials where the
impartiality of even those at the highest levels of the
judiciary might not be so clear. It is difficult to imagine
Roberts' providing any meaningful protection in those
circumstances.

 ****

Where nontestimonial hearsay is at issue, it is wholly
consistent with the Framers' design to afford the States
flexibility in their development of hearsay law -- as does
Roberts, and as would an approach that exempted such
statements from Confrontation Clause scrutiny
altogether. Where testimonial evidence is at issue,
however, the Sixth Amendment demands what the
common law required: unavailability and a prior


                             17
             opportunity for cross-examination.

      Permitting and affidavit from a witness (Sands), who clearly lacks personal

knowledge, on a showing that such testimony was inconsistent and conclusory

violates Due Process and the right to confrontation. Crawford v. Washington, 541

U.S. 36, 68 (2004). Accordingly, the trial court erred by refusing to allow further

examination or inquiry as to the basis of the witness’s knowledge. Further, because

the affidavit of the identifying witness was insufficient to identify Appellant as the

person wanted for a crime in the State of Iowa, the trial court erred in refusing to

grant relief on Appellant’s writ of habeas corpus.




                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court

reverse and render that Appellant’s writ of habeas corpus be granted, or


                                         18
alternatively remand for a new trial and/or hearing, and for such other and further

relief as is just.

                                      Respectfully submitted,

                                       /S/James D. Pierce
                                       James D. Pierce
                                      Texas Bar No. 15994500
                                      1 Sugar Creek Center Suite 1080
                                      Sugar Land, TX 77478
                                      (713) 650-0150
                                      jim@jamespierce.com



                                      /S/David M. Medina
                                      David M. Medina
                                      SBN 00000088
                                      5300 Memorial Drive, Suite 890
                                      Houston, TX 77007
                                      713-256-3969
                                      davidmedina@justicedavidmedina.com



                                      ATTORNEYS FOR APPELLANT,
                                      Robert Clark Rhodes




                                        19
                          CERTIFICATE OF COMPLAINCE

      This is to certify that the forgoing brief contains 5080 words as defined in
Texas Rule of Appellate Procedure 9.4(i)(1).


                                        /S/James D. Pierce
                                        James D Pierce



                          CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing brief has been
served on the below listed counsel of record this 28th day of October, 2015
through the Court’s Electronic Filing System.




                                        /S/James D. Pierce
                                        James D. Pierce




                                         20
